<PAGE>
As filed with the Securities and Exchange Commission on July 9, 1999
Registration Statement No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
WEBHIRE, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 04-2935271
(State of incorporation) (I.R.S. Employer Identification Number)
91 HARTWELL AVENUE
LEXINGTON, MASSACHUSETTS 02421
(781) 869 - 5000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
INCENTIVE STOCK OPTION AGREEMENTS, EACH GRANTING OPTIONS AS OF DECEMBER 1, 1998
(Full Title of the Plan)
------------------------------------
LARS D. PERKINS
CHIEF EXECUTIVE OFFICER
WEBHIRE, INC.
91 HARTWELL AVENUE
LEXINGTON, MASSACHUSETTS 02421
(781) 869 - 5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
With a copy to:
John J. Egan III, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
Title of Securities Being Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered (2) Registered(1) Price Per Share Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 48,187 shares $ .50 $24,093.50 $ 9.00
per share
Common Stock, par value $.01 16,062 shares .50 8,031.00
per share ------------- ------------
64,249 shares $32,124.50
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to
the Incentive Stock Option Agreement (granting stock options as of
December 1, 1998) relating to 48,187 shares of Common Stock or the
Incentive Stock Option Agreement (granting stock options as of December
1, 1998) relating to 16,062 shares of Common Stock in the event of a
stock dividend, stock split, recapitalization or other similar event.
(2) The aggregate offering price and fee are computed based on the exercise
price of the options to purchase shares of Common Stock of Webhire,
Inc., par value $.01 per share, which have been granted pursuant to
those certain Incentive Stock Option Agreements, granting stock options
as of December 1, 1998, in accordance with Rule 457(h) under the
Securities Act of 1933.
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- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUSES
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
Prospectuses is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Webhire, Inc. (the "Company") hereby incorporates by reference the
documents listed in (a) through (c) below, which have previously been filed with
the Securities and Exchange Commission (the "Commission").
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1998;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
since September 30, 1998, the end of the fiscal year covered by
the Annual Report referred to in (a) above; and
(c) The description of the Company's common stock contained in its
Registration Statement on Form 8-A, filed with the Commission on
June 21, 1996, under Section 12(g) of the Exchange Act and any
amendments or reports filed for the purpose of updating such
description.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment hereto which indicates that
all securities offered hereunder have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
or in any subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the Delaware General Corporation Law
(the "DGCL") empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a
<PAGE>
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. Under subsection (a) the termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the person's conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been found to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Subsection (d) of Section 145 of the DGCL permits indemnification under
subsections (a) and (b) of Section 145 only if authorized in the specific case
following a determination that the individual seeking indemnification has met
the standard of conduct required by the applicable subsection. Such
determination shall be made (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by the stockholders.
Section 145 further provides that to the extent a director or officer of
a corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section
145, or in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith; that indemnification provided
for by Section 145 shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled; that indemnification provided for by
Section 145 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of such person's heirs, executors and
administrators; and that the corporation has the power to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of a
director's duty of loyalty to the corporation or its stockholder; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law; (iii) under Section 174 of the DGCL; or (iv) for
any transaction from which the director derived an improper personal benefit.
Article V of the Amended and Restated By-laws of the Company provides
for indemnification by the Company of its directors and officers to the fullest
extent authorized by the DGCL against expenses (including attorneys' fees,
judgments, fines and amounts reasonably paid in settlement) actually and
reasonably incurred in connection with the defense or settlement of any
threatened, pending or completed legal proceeding in which any such person is
involved by reason of the fact that such person is or was a director or officer
of the Company if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to criminal proceedings, if such person had no
reasonable cause to believe that his or her conduct was unlawful.
Article VII of the Third Amended and Restated Certificate of
Incorporation of the Company (the "Certificate of Incorporation") provides that
a Director of the Company shall not be personally liable to the Company or its
2
<PAGE>
stockholders for monetary damages for breach of fiduciary duty as a Director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL or (iv) for any transaction from which the Director
derived an improper personal benefit. The Certificate of Incorporation also
provides that if the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of Directors, then the liability
of a Director of the Company shall be eliminated or limited to the fullest
extent permitted by the DGCL, as so amended.
Reference is made to the Indemnity Agreements entered into by the
Company with Messrs. Perkins, Costello, Campanello and Johnston in order to
induce their service on the Board of Directors of the Company. Each Indemnity
Agreement provides a contractual right to indemnification to Messrs. Perkins,
Costello, Campanello and Johnston for certain expenses incurred by such
directors due to suits brought against them in their capacities as directors of
the Company, to the extent permitted by Delaware law and the Company's
Certificate of Incorporation.
The Company has purchased directors' and officers' liability insurance
coverage, including securities related exposure and entity coverage, in the
amount of $2,000,000.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
EXHIBITS
*4.1 Form of Third Amended and Restated Certificate of
Incorporation of Webhire, Inc.
*4.2 Amended and Restated By-laws of Webhire, Inc.
+4.3 Incentive Stock Option Agreement (granting options as of
December 1, 1998) relating to 48,187 shares of Common Stock.
+4.4 Incentive Stock Option Agreement (granting options as of
December 1, 1998) relating to 16,062 shares of Common Stock.
+5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
the securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1).
+23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.
24.1 Powers of Attorney (included on the signature page of this
registration statement).
- ----------------
* Incorporated by reference to the relevant exhibit to the Webhire, Inc.
(f/k/a Restrac, Inc.) Registration Statement on Form S-1, as amended,
(File No. 333-03521) which was originally filed with the Commission on
May 10, 1996.
+ Filed herewith.
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed
3
<PAGE>
that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above
shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
undersigned registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Lexington, Commonwealth of Massachusetts, on July 8,
1999.
WEBHIRE, INC.
By: /s/ Lars D. Perkins
--------------------------------
Lars D. Perkins
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Webhire, Inc. hereby severally constitute Lars D. Perkins and
Cynthia G. Eades, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the registration statement filed herewith and
any and all amendments to said registration statement, and generally to do all
such things in our names and in our capacities as officers and directors to
enable Webhire, Inc. to comply with the provisions of the Securities Act of 1933
and all requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or
any of them, to said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Lars D. Perkins Director and Chief Executive Officer July 8, 1999
- ------------------------------------ (Principal Executive Officer)
Lars D. Perkins
/s/ Martin Fahey Director, President and Chief July 8, 1999
- ------------------------------------ Operating Officer
Martin Fahey (Principal Executive Officer)
/s/ Cynthia G. Eades Chief Financial Officer July 8, 1999
- ------------------------------------ (Principal Financial Officer
Cynthia G. Eades and Principal Accounting Officer)
/s/ Russell J. Campanello Director July 8, 1999
- ------------------------------------
Russell J. Campanello
/s/ J. Paul Costello Director July 8, 1999
- ------------------------------------
J. Paul Costello
/s/ A. Bruce Johnston Director July 8 1999
- ------------------------------------
A. Bruce Johnston
/s/ Kevitark R. Shriram Director July 8, 1999
- ------------------------------------
Kevitark R. Shriram
</TABLE>
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
*4.1 Form of Third Amended and Restated Certificate of Incorporation
of Webhire, Inc.
*4.2 Amended and Restated By-laws of Webhire, Inc.
+4.3 Incentive Stock Option Agreement (granting options as of December
1, 1998) relating to 48,187 shares of Common Stock.
+4.4 Incentive Stock Option Agreement (granting options as of December
1, 1998) relating to 16,062 shares of Common Stock.
+5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1).
+23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Powers of Attorney (included on the signature page of this
registration statement).
</TABLE>
- ----------------
* Incorporated by reference to the relevant exhibit to the Webhire, Inc.
(f/k/a Restrac, Inc.) Registration Statement on Form S-1, as amended,
(File No. 333-03521) which was originally filed with the Commission on
May 10, 1996.
+ Filed herewith.
6
<PAGE>
Exhibit 4.3
NOTICE OF ASSUMPTION OF OPTIONS
Reference is made to the Agreement and Plan of Merger, dated as of July
9, 1999 (the "Merger Agreement"), by and among Webire, Inc, a Delaware
corporation ("Webhire"), HWK Acquisition Corp., a Delaware corporation,
HireWorks, Inc., a Delaware corporation (the "Company") and the Principal
Stockholders (as defined in the Merger Agreement) including you, Deborah Hamill.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Merger Agreement.
Pursuant to Section 1.7 of the Merger Agreement, at the Effective Time,
the options you held immediately prior to the Effective Time to purchase an
aggregate of 315,000 shares of the common stock, par value $.01 per share (the
"Company Stock"), of the Company (the "Assumed Options"), represented by an
Incentive Option Agreement pursuant to which you were granted an option to
purchase 78,750 shares of Company Stock at an exercise price of $.10 per share
(the "Escrow Option Agreement") and an Incentive Option Agreement pursuant to
which you were granted an option to purchase 236,250 shares of Company Stock at
an exercise price of $.10 per share (the "Non-Escrow Option Agreement" and,
together with the Escrow Option Agreement, the "Option Agreements"), ceased to
represent a right to acquire shares of Company Stock and were be converted
automatically into options to acquire, under the same terms and conditions as
were applicable to such Assumed Options immediately prior to the Effective Time
(including, among other things, that such Assumed Options are fully vested),
shares of common stock, par value $.01 per share (the "Webhire Common Stock"),
of Webhire, and Webhire assumed the Assumed Options and the Option Agreements;
provided, however, that from and after the Effective Time, (i) the Escrow Option
Agreement shall represent the right to acquire 236,250 shares of Webhire Common
Stock at an exercise price of $.50 per share, (ii) the Non-Escrow Option shall
represent the right to acquire 78,750 shares of Webhire Common Stock at an
exercise price of $.50 per share, (iii) Section 14 of the Option Agreements, and
all references thereto in the Option Agreements, shall no longer apply to the
Assumed Options, (iv) Section 17 of the Company's 1998 Stock Option/Stock
Issuance Plan shall no longer apply to the Option Agreements, and (v) the Escrow
Option Agreement shall be transferable in accordance with the terms of the
Merger Agreement and the Escrow Agreement. The terms of each Assumed Option
continue to be, in accordance with its terms, subject to further adjustment as
appropriate to reflect any stock split, stock dividend, recapitalization or
other similar transaction with respect to Webhire Common Stock on or subsequent
to the Effective Time.
WEBHIRE, INC.
By: /s/ Martin J. Fahey July 9, 1999
--------------------------------
Name: Martin J. Fahey
Title: President
ACKNOWLEDGED AND AGREED
/s/ Deborah Hamill
- ------------------------------
Deborah Hamill
<PAGE>
HIREWORKS, INC.
INCENTIVE STOCK OPTION AGREEMENT
HireWorks, Inc., a Delaware corporation (the "Company"), hereby grants
this 1st day of December 1998 (the "Grant Date"), to Deborah Hamill (the
"Employee"), an option to purchase a maximum of 236,250 shares of the Company's
Common Stock, $.01 par value per share (the "Common Stock"), at the price of
$.10 per share, on the following terms and conditions:
1. GRANT UNDER 1998 STOCK OPTION/STOCK ISSUANCE PLAN. (a) This option
is granted pursuant to and is governed by and subject to the Company's 1998
Stock Option/Stock Issuance Plan (the "Plan"), the terms and conditions of which
are incorporated herein by this reference. Unless the context otherwise
requires, terms used herein shall have the same meaning as in the Plan.
Determinations made pursuant to the Plan in connection with this option shall be
governed by the Plan as it exists on the date of this option agreement
("Agreement").
(b) The granting of this option shall be subject to receipt by the
Company of the Company's current form of HireWorks, Inc. Invention,
Confidentiality, and Non-Compete Agreement, executed and delivered by the
Employee.
2. GRANT AS INCENTIVE STOCK OPTION, OTHER OPTIONS. This option is
intended to qualify as an incentive stock option ("ISO") within the meaning of
Section 422 of the Internal Revenue Code of 1986 (the "Code"). This option is in
addition to any other options heretofore or hereafter granted to the Employee by
the Company, but a duplicate original of this instrument shall not effect the
grant of another option.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
(a) VESTING SCHEDULE. Except as otherwise provided in this
Agreement, and subject to all other terms and conditions of this Agreement, if
the Employee has continued to be employed by the Company through any applicable
date in the table below, this option may be exercised prior to the tenth
anniversary of the Grant Date (hereinafter the "Expiration Date") in
installments for not more than the number of shares set forth opposite such
applicable date:
March 31, 1998 0
March 31, 1999 73,750 shares
March 31, 2000 an additional 81,250 shares
March 31, 2001 an additional 81,250 shares
The right of exercise shall be cumulative so that if the option is not
exercised to the maximum extent permissible as of an applicable date, it shall
be exercisable, in whole or in part, with respect to all shares not so purchased
at any time prior to the Expiration Date or the earlier termination of this
option. Notwithstanding any other provision of this Agreement or the Plan, this
option may not be exercised at any time on or after the Expiration Date.
<PAGE>
Notwithstanding the foregoing vesting schedule, if the Company is to be
consolidated with or merged into another company where the Company is not the
survivor corporation or in which the Company is the survivor corporation but
becomes a wholly-owned subsidiary of another corporation, or if the Company is
acquired by another entity in an acquisition of all or substantially all of the
Company's assets or 70% or more of the Company's issued and outstanding shares
of capital stock (collectively, a "Company Sale"), then all outstanding shares
covered by this Option shall become exercisable in full (to the extent not
otherwise so exercisable) prior to the consummation of the Company Sale.
(b) METHOD OF EXERCISE. Subject to the terms and conditions
set forth in this Agreement, this option shall be exercised by the Employee's
delivery of written notice of exercise to the Treasurer of the Company,
specifying the number of shares to be purchased and the purchase price to be
paid therefor and accompanied by payment in full in accordance with Section 4
hereof. Such exercise shall be effective upon receipt by the Treasurer of the
Company of such written notice together with the required payment. The Employee
may purchase less than the number of shares covered hereby, provided that no
partial exercise of this option may be for any fractional share or for fewer
than 1000 whole shares.
(c) CONTINUOUS EMPLOYMENT REQUIRED. Except as otherwise
provided in this Section 3, this option may not be exercised unless the
Employee, at the time he or she exercises this option, is, and has been at all
times since the Grant Date, an employee of the Company. For all purposes of this
Agreement, (i) "employee" and "employment" shall be defined in accordance with
the provisions of Treasury Regulation Section 1.421-7(h) under the Code, or any
successor regulations, (ii) employment by a parent or subsidiary corporation of
the Company shall be deemed to be employment by the Company and (iii) if this
option shall be assumed or a new option substituted therefor in a transaction to
which Section 424(a) of the Code applies, employment by such assuming or
substituting corporation (hereinafter a "Successor Corporation") shall be
considered for all purposes of this option to be employment by the Company. As
used herein, the terms "parent" and "subsidiary" mean "parent corporation" and
"subsidiary corporation", respectively, as those terms are defined in Sections
424(e) and 424(f) or successor provisions of the Code.
(d) EXERCISE PERIOD UPON TERMINATION OF EMPLOYMENT. If the
Employee ceases to be employed by the Company for any reason, then, except as
provided in paragraphs (e) and (f) below, the right to exercise this option
shall terminate on the date which is three (3) months after the date of
cessation of employment (but in no event after the Expiration Date); provided,
however, that this option shall be exercisable only to the extent that the
Employee was entitled to exercise this option on the date of such cessation.
Notwithstanding the foregoing, if, in the judgment of the Company, the Employee,
prior to the Expiration Date, materially violates the non-competition or
confidentiality provisions of any employment contract, confidentiality and
nondisclosure agreement or other agreement between the Employee and the Company,
the right to exercise this option shall terminate immediately upon written
notice to the Employee from the Company describing such violation.
<PAGE>
(e) EXERCISE PERIOD UPON DEATH OR DISABILITY. If the Employee
dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code)
prior to the Expiration Date while he or she is an employee of the Company, or
if the Employee dies within three (3) months after the date on which the
Employee ceases to be an employee of the Company (other than as the result of a
discharge for "cause" as specified in Paragraph (f) below), this option shall be
exercisable within the period of one (1) year following the date of death or
disability of the Employee (but in no event after the Expiration Date), by the
Employee or by the person to whom this option is transferred by will or the laws
of descent and distribution; provided, however, that this option shall be
exercisable only to the extent that this option was exercisable by the Employee
on the date of his or her death or disability. Except as otherwise indicated by
the context, the term "Employee", as used in this Agreement, shall include the
estate of the Employee, the Employee's personal representative, or any other
person who acquires the right to exercise this option by bequest or inheritance
or otherwise by reason of the death of the Employee or by reason of the
Employee's incapacity.
(f) DISCHARGE FOR CAUSE. If the Employee, prior to the
Expiration Date, is discharged by the Company for "cause" (as defined below),
the right to exercise this option shall terminate immediately upon such
discharge. "Cause" shall mean willful misconduct or willful failure by the
Employee to perform his or her employment responsibilities in the best interests
of the Company (including, without limitation, breach by the Employee of any
provision of any employment, nondisclosure, non-competition or other similar
agreement between the Employee and the Company), as determined by the Company,
which determination shall be conclusive. The Employee shall be considered to
have been discharged "for cause" if the Company determines, within thirty (30)
days after the Employee's resignation, that discharge for cause was warranted.
4. PAYMENT OF PURCHASE PRICE. Payment of the purchase price for shares
purchased upon exercise of this option shall be made by delivery to the Company
of cash or wire transfer or a check payable to the order of the Company in an
amount equal to the purchase price per share as hereinabove set forth times the
number of shares so purchased (the "exercise price").
5. DELIVERY OF SHARES.
(a) GENERAL. The Company shall, upon payment of the exercise
price for the number of shares purchased and paid for, make prompt delivery of
such shares to the Employee; provided, however, that if any law or regulation
requires the Company to take any action with respect to such shares before the
issuance thereof, then the date of delivery of such shares shall be extended for
the period necessary to complete such action.
(b) LISTING, REGISTRATION, QUALIFICATION, ETC. This option
shall be subject to the requirement that if, at any time, counsel to the Company
shall determine that the listing, registration or qualification of the shares
subject hereto upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any other condition
is necessary as a condition of, or in connection with, the issuance or purchase
of shares hereunder,
<PAGE>
this option may not be exercised, in whole or in part, unless such listing,
registration, qualification, consent or approval, disclosure or satisfaction of
such other condition shall have been effected or obtained on terms acceptable to
the Board of Directors of the Company. Nothing herein shall be deemed to require
the Company to apply for, effect or obtain such listing, registration,
qualification, or disclosure, or to satisfy such other condition.
6. NONTRANSFERABILITY OF OPTION. Except as provided in Paragraph (e) of
Section 3 hereof, this option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) nor shall any such rights be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this option or of such rights contrary to
the provisions hereof, or upon the levy of any attachment or similar process
upon this option or such rights, this option and such rights shall, at the
election of the Company, become null and void.
7. NO SPECIAL EMPLOYMENT RIGHTS. Nothing contained in the Plan or this
Agreement shall be construed or deemed by any person under any circumstances to
obligate the Company to continue the employment of the Employee for any period.
8. RIGHTS AS A SHAREHOLDER. The Employee shall have no rights as a
shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to vote or to receive
dividends or other distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered to the
Employee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
9. ADJUSTMENT PROVISIONS.
(a) GENERAL. If through, or as a result of, any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, (i) the outstanding shares of
Common Stock are increased or decreased or are exchanged for a different number
or kind of shares or other securities of the Company, or (ii) additional shares
or new or different shares or other securities of the Company or other non-cash
assets are distributed with respect to such shares of Common Stock or other
securities, the Employee shall, with respect to this option or any unexercised
portion hereof, be entitled to the rights and benefits, and be subject to the
limitations, set forth in Paragraph 14 of the Plan.
(b) BOARD AUTHORITY TO MAKE ADJUSTMENTS. Any adjustments under
this Section 9 shall be made by the Board of Directors of the Company, whose
determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive. No fractional shares will be
issued with respect to this option on account of any such adjustments.
(c) LIMITS ON ADJUSTMENTS. No adjustment shall be made under
this Section 9 which would, for purposes of any applicable provision of the
Code, constitute a modification, extension or renewal of this option or a grant
of additional benefits to the Employee.
<PAGE>
10. MERGERS, CONSOLIDATIONS, ASSET SALES, LIQUIDATIONS, ETC. In the
event of a consolidation or merger or sale of all or substantially all of the
assets of the Company in which outstanding shares of Common Stock are exchanged
for securities, cash or other property of any other corporation or business
entity, or in the event of the liquidation of the Company, prior to the
Expiration Date or other termination of this option, the Employee shall, with
respect to this option or any unexercised portion hereof, be entitled to the
rights and benefits, and be subject to the limitations, set forth in Paragraph
16 of the Plan.
11. WITHHOLDING OF TAXES. The Company's obligation to deliver shares
upon the exercise of this option shall be subject to the Employee's satisfaction
of all applicable federal, state and local income and employment tax withholding
requirements as described in Paragraph 23 of the Plan. Without limiting the
generality of the foregoing, if the Company in its discretion determines that it
is obligated to withhold tax with respect to a Disqualifying Disposition (as
defined in Section 12 hereof), the Employee agrees that the Company may withhold
from the Employee's wages the appropriate amount of federal, state and local
withholding taxes attributable to such Disqualifying Disposition. If any portion
of this option is treated as a Non-Qualified Option, the Employee agrees that
the Company may withhold from the Employee's wages the appropriate amount of
federal, state and local withholding taxes attributable to the Employee's
exercise of such Non-Qualified Option. At the Company's discretion, the amount
required to be withheld may be withheld in cash from such wages, or otherwise as
may be permitted under the Plan. The Employee further agrees that, if the
Company does not withhold an amount from the Employee's wages sufficient to
satisfy the Company's withholding obligation or if such obligation is not
otherwise satisfied, as determined by the Company, the Employee will reimburse
the Company on demand, in cash, for the amount underwithheld.
12. HOLDING PERIOD REQUIREMENTS FOR INCENTIVE STOCK OPTION SHARES. It
is understood and intended that this option shall qualify as an "incentive stock
option" as defined in Section 422 of the Code (an "ISO"). Accordingly, the
Employee understands that in order to obtain the beneficial tax treatment
accorded an ISO, no sale or other disposition may be made of any shares acquired
upon exercise of the option within one (1) year after the day of the transfer of
such shares to the Employee, nor within two (2) years after the Grant Date. If
the Employee intends to dispose, or does dispose (whether by sale, exchange,
gift, transfer or otherwise), of any such shares within either of said periods,
he or she will notify the Company in writing within ten (10) days after such
disposition (a "Disqualifying Dispositions").
13. INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS; LEGENDS.
(a) REPRESENTATIONS. The Employee represents, warrants and
covenants that:
(i) Any shares purchased upon exercise of this option
shall be acquired for the Employee's account for investment only and not with a
view to, or for sale in connection with, any distribution of the shares in
violation of the Securities Act of 1933 (the "Securities Act") or any rule or
regulation under the Securities Act.
<PAGE>
(ii) The Employee has had such opportunity as he or
she has deemed adequate to obtain from representatives of the Company such
information as is necessary to permit the Employee to evaluate the merits and
risks of his or her investment in the Company.
(iii) The Employee is able to bear the economic risk
of holding shares acquired pursuant to the exercise of this option for an
indefinite period.
(iv) The Employee understands that (A) the shares
acquired pursuant to the exercise of this option will not be registered under
the Securities Act and are "restricted securities" within the meaning of Rule
144 under the Securities Act; (B) such shares cannot be sold, transferred or
otherwise disposed of unless they are subsequently registered under the
Securities Act or an exemption from registration is then available; (C) in any
event, an exemption from registration under Rule 144 or otherwise under the
Securities Act may not be available for at least two years and even then will
not be available unless a public market then exists for the Common Stock,
adequate information concerning the Company is then available to the public and
other terms and conditions of Rule 144 are complied with; and (D) there is now
no registration statement on file with the Securities and Exchange Commission
with respect to any stock of the Company and the Company has no obligation or
current intention to register any shares acquired pursuant to the exercise of
this option under the Securities Act.
(v) The Employee agrees that, if the Company offers
for the first time any of its Common Stock for sale pursuant to a registration
statement under the Securities Act, the Employee will not, without the prior
written consent of the Company, publicly offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, any shares purchased upon exercise
of this option for a period of ninety (90) days, or such longer period as the
Company may reasonably require, after the effective date of such registration
statement.
(vi) The Employee's principal residence is at the
address set forth below on the signature page. The Employee shall promptly
notify the Company of any change in the Employee's principal residence.
By making payment upon any exercise of this option, in whole or in part, the
Employee shall be deemed to have reaffirmed, as of the date of such payment, the
representations made in this Section 13.
(b) LEGENDS ON STOCK CERTIFICATES. All stock certificates
representing shares of Common Stock issued to the Employee upon exercise of this
option shall have affixed thereto legends substantially in the following forms,
in addition to any other legends required by applicable state law:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 and may not
be transferred, sold or otherwise disposed of in the absence
of an effective registration statement with respect to the
shares evidenced by this certificate, filed and made effective
under the Securities Act of
<PAGE>
1933, or an opinion of counsel satisfactory to the Company to
the effect that registration under such Act is not required."
14. TRANSFER AND OTHER RESTRICTIONS; COMPANY'S PURCHASE RIGHT. Except
as set forth in this Section 14, no disposition (whether by sale, exchange,
gift, transfer or otherwise) may be made of any shares acquired upon exercise of
this option, other than by will or the laws of descent and distribution.
(a) FIRST REFUSAL RIGHTS.
(i) If the Employee or the Employee's successor in
interest desires to sell all or any part of the shares acquired under this
option (including any securities received in respect thereof pursuant to
recapitalizations and the like), and an offeror (the "Offeror") has made an
offer therefor, which offer the Employee desires to accept, the Employee shall:
(y) obtain in writing an irrevocable and unconditional bona fide offer (the
"Bona Fide Offer") for the purchase thereof from the Offeror; and (z) give
written notice (the "Option Notice") to the President of the Company setting
forth the Employee's desire to sell such shares, which Option Notice shall be
accompanied by a photocopy of the original executed Bona Fide Offer and shall
set forth at least the name and address of the Offeror and the price and terms
of the Bona Fide Offer. Upon receipt of the Option Notice, the Company shall
have an option to purchase any or all of the shares specified in the Option
Notice, such option to be exercisable by giving, within thirty (30) days after
receipt of the Option Notice, a written counter-notice to the Employee. If the
Company elects to purchase, the Employee shall be obligated to sell to the
Company such shares at the price and terms indicated in the Bona Fide Offer
within sixty (60) days from the date of receipt by the Company of the Option
Notice. The Company's purchase rights under this Section 14 are assignable by
the Company.
(ii) Subject to Paragraph 14(b) below, the Employee
may sell, pursuant to the terms of the Bona Fide Offer, any or all of such
shares not purchased by the Company or which the Company does not elect to
purchase in the manner set forth hereinabove after the expiration of the 30-day
period during which the Company may give the aforesaid counter-notice; provided,
however, that the Employee may not sell such shares to the Offeror if the
Offeror is (w) a competitor of the Company, or (x) a person that controls, is
controlled by or under common control with a competitor of the Company, or (y) a
member of management of a competitor of the Company (any person described in
clauses (w) through (y) being hereinafter referred to as a "Competitor") or (z)
a person or entity to which the Board of Directors determines, in its sole
discretion, that a transfer of shares of the Company would be against the
Company's best interest, and the Company gives to the Employee, within thirty
(30) days of its receipt of the Option Notice, written notice stating that the
Employee shall not sell the shares to the Offeror; and provided, further, that
prior to the sale of any such shares to the Offeror, the Offeror shall execute
an agreement with the Company under which the Offeror agrees not to become a
Competitor of the Company and further agrees to be subject to the restrictions
set forth in this Agreement. If any or all of such shares are not sold pursuant
to a Bona Fide Offer within the time permitted above, the unsold shares shall
remain subject to the terms of this Agreement.
<PAGE>
(iii) The first refusal rights of the Company set
forth above shall remain in effect until the closing of an initial underwritten
public offering of the Company's Common Stock pursuant to a registration
statement filed under the Securities Act of 1933, as amended, or a successor
statute, at which time the first refusal rights set forth herein will
automatically expire.
(b) COMPANY'S S CORPORATION STATUS.
(i) The Employee understands and acknowledges that
the Company has made an election under Section 1362(a) of the Code to be taxed
as an "S corporation" ("S Election"), that this tax status is in the best
interests of the Company and its shareholders, and that the Company's S Election
may be terminated and such status may be lost as a result of any transfer of the
Company's stock to an ineligible shareholder, or by the Company having more than
seventy-five (75) shareholders, or by certain other actions or events.
Accordingly, the Employee agrees that the Employee will not:
(A) Transfer any share of stock of the
Company unless (y) in the opinion of counsel to the Company such transfer will
not adversely affect the Company's S Election, and (z) the transferee consents
in writing to be bound by the provisions of this Section 14 and consents in
writing to the continuation of the Company's S Election. Any attempt by the
Employee to transfer any of the shares of stock received as a result of the
exercise of this option in contravention of the foregoing shall be null and void
ab initio. Nothing contained herein shall be construed to permit a transfer of
stock of the Company if the transfer is otherwise restricted by the terms of
this Agreement, by any governmental statute, regulation or rule, or by the terms
of any other agreement to which the Employee is a party.
(B) File any document with the Internal
Revenue Service, or take any other action, resulting in the termination of the
Company's S Election.
(C) Fail to sign or file any consent or
other document with the Internal Revenue Service deemed necessary by counsel to
the Company for the preservation of the Company's S Election.
(D) Fail to take any other action from time
to time considered necessary or advisable by counsel to the Company for the
preservation of the Company's S Election.
(E) Change his or her residence or take any
other action such that the Employee would not be either a resident of the United
States or a citizen of the United States without giving thirty (30) days prior
written notice to the Company and offering the Company the right to repurchase
all of his or her shares of Common Stock at a price determined pursuant to
Section 14(c)(ii) hereof before making such change of residence or citizenship.
(ii) In the event of an inadvertent termination of
the Company's S Election, whether as a result of a transfer of stock or for any
other reason, and prior to any termination of said election by a valid written
revocation under Section 1362(d)(1) of the Code,
<PAGE>
the Employee agrees to make any necessary adjustments under Section 1362(f)(4)
of the Code in order to continue the treatment of the Company as an S
corporation under the Code. The Employee agrees that any such adjustment shall
be effective as of the date of such inadvertent termination.
(iii) The Employee agrees to indemnify and hold
harmless the Company and the Company's other shareholders from any and all
damages, losses or other financial injuries sustained by it or them as a result
of the Employee's failure to comply with the terms and provisions of this
paragraph (b).
(iv) The Company may choose to terminate its S
Election at any time without any notice to the Employee. The Company shall have
no liability to the Employee for any termination of its S Election, regardless
of the reason for such termination.
15. MISCELLANEOUS.
(a) Except as otherwise expressly provided herein, this
Agreement may not be amended or otherwise modified unless evidenced in writing
and signed by the Company and the Employee.
(b) All notices under this Agreement shall be delivered by
hand, sent by commercial overnight courier service or sent by registered or
certified mail, return receipt requested, and first-class postage prepaid, to
the parties at their respective addresses set forth beneath their names below or
at such other address as may be designated in a notice by either party to the
other. Notwithstanding the foregoing, any notice sent to such an address in a
country other than that from which the notice is sent may be sent by telefax,
telegram or commercial air courier.
(c) Any reference in this Agreement to a Section of the Code
shall refer to that Section as it reads as of the date of this Agreement and as
it may be amended from time to time, and to any successor provision.
(d) Each provision of this Agreement shall be considered
separable. The invalidity or unenforceability of any provision shall not affect
the other provisions, and this Agreement shall be construed in all respects as
if such invalid or unenforceable provision were omitted.
(e) Sections 12, 13, 14 and 15 hereof shall survive any
termination of this Agreement.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(g) The failure of the Company or the Employee to insist upon
strict performance of any provision hereunder, irrespective of the length of
time for which such failure continues,
<PAGE>
shall not be deemed a waiver of such party's right to demand strict performance
at any time in the future. No consent or waiver, express or implied, to or of
any breach or default in the performance of any obligation or provision
hereunder shall constitute a consent or waiver to or of any other breach or
default in the performance of the same or any other obligation hereunder.
(h) Except for the right of any party to apply to a court of
competent jurisdiction for a temporary restraining order, preliminary
injunction, or other equitable relief to preserve the status quo or prevent
irreparable harm pending the selection and confirmation of an arbitrator, any
controversy or claim arising out of or relating to this Agreement, including
without limitation claims under the Americans with Disabilities Act, the Age
Discrimination in Employment Act of 1967, as amended, Title VII of the Civil
Rights Act of 1964 as amended, Massachusetts General Laws Chapter 151B, or any
other applicable state or federal statutory or common law; shall be resolved by
arbitration in Boston, Massachusetts, in accordance with the governing rules of
the American Arbitration Association (the "AAA"). A demand for arbitration shall
be filed with the AAA during the term, or within six months after termination or
expiration, of this Agreement. The arbitrator shall have the authority to permit
discovery, to the extent deemed appropriate by the arbitrator, upon the request
of a party and to grant any type of injunctive relief as well as award damages;
provided, however, the arbitrator shall have no authority to award multiple or
punitive damages. The costs of the arbitration proceeding, including the fee of
the arbitrator, shall be borne equally by the parties. Each party shall bear the
costs of its own counsel. Judgment upon the award entered may be enforced by any
court of competent jurisdiction.
Date of Grant: December 1, 1998
HireWorks, Inc.
By: /s/ Henry M. Margolis
-----------------------------
Title: President
--------------------------
Address:
-------------------------
-------------------------
<PAGE>
Employee's Acceptance
The undersigned hereby accepts the foregoing option and agrees to the
terms and conditions of this Agreement. The undersigned hereby acknowledges
receipt of a copy of the Company's 1998 Stock Option/Stock Issuance Plan.
Deborah Hamill
/s/ Deborah H. Hamill
---------------------------------
Signature
Address:
-------------------------
-------------------------
<PAGE>
EXHIBIT 4.4
NOTICE OF ASSUMPTION OF OPTIONS
Reference is made to the Agreement and Plan of Merger, dated as of July
9, 1999 (the "Merger Agreement"), by and among Webire, Inc, a Delaware
corporation ("Webhire"), HWK Acquisition Corp., a Delaware corporation,
HireWorks, Inc., a Delaware corporation (the "Company") and the Principal
Stockholders (as defined in the Merger Agreement) including you, Deborah Hamill.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Merger Agreement.
Pursuant to Section 1.7 of the Merger Agreement, at the Effective Time,
the options you held immediately prior to the Effective Time to purchase an
aggregate of 315,000 shares of the common stock, par value $.01 per share (the
"Company Stock"), of the Company (the "Assumed Options"), represented by an
Incentive Option Agreement pursuant to which you were granted an option to
purchase 78,750 shares of Company Stock at an exercise price of $.10 per share
(the "Escrow Option Agreement") and an Incentive Option Agreement pursuant to
which you were granted an option to purchase 236,250 shares of Company Stock at
an exercise price of $.10 per share (the "Non-Escrow Option Agreement" and,
together with the Escrow Option Agreement, the "Option Agreements"), ceased to
represent a right to acquire shares of Company Stock and were be converted
automatically into options to acquire, under the same terms and conditions as
were applicable to such Assumed Options immediately prior to the Effective Time
(including, among other things, that such Assumed Options are fully vested),
shares of common stock, par value $.01 per share (the "Webhire Common Stock"),
of Webhire, and Webhire assumed the Assumed Options and the Option Agreements;
PROVIDED, HOWEVER, that from and after the Effective Time, (i) the Escrow Option
Agreement shall represent the right to acquire 236,250 shares of Webhire Common
Stock at an exercise price of $.50 per share, (ii) the Non-Escrow Option shall
represent the right to acquire 78,750 shares of Webhire Common Stock at an
exercise price of $.50 per share, (iii) Section 14 of the Option Agreements, and
all references thereto in the Option Agreements, shall no longer apply to the
Assumed Options, (iv) Section 17 of the Company's 1998 Stock Option/Stock
Issuance Plan shall no longer apply to the Option Agreements, and (v) the Escrow
Option Agreement shall be transferable in accordance with the terms of the
Merger Agreement and the Escrow Agreement. The terms of each Assumed Option
continue to be, in accordance with its terms, subject to further adjustment as
appropriate to reflect any stock split, stock dividend, recapitalization or
other similar transaction with respect to Webhire Common Stock on or subsequent
to the Effective Time.
WEBHIRE, INC.
By: /s/ Martin J. Fahey July 9,1999
--------------------------------
Name: Martin J. Fahey
Title: President
ACKNOWLEDGED AND AGREED
/s/ Deborah Hamill
- ------------------------------
Deborah Hamill
<PAGE>
HIREWORKS, INC.
INCENTIVE STOCK OPTION AGREEMENT
HireWorks, Inc., a Delaware corporation (the "Company"), hereby grants
this 1st day of December 1998 (the "Grant Date"), to Deborah Hamill (the
"Employee"), an option to purchase a maximum of 78,750 shares of the Company's
Common Stock, $.01 par value per share (the "Common Stock"), at the price of
$.10 per share, on the following terms and conditions:
1. GRANT UNDER 1998 STOCK OPTION/STOCK ISSUANCE PLAN. (a) This option
is granted pursuant to and is governed by and subject to the Company's 1998
Stock Option/Stock Issuance Plan (the "Plan"), the terms and conditions of which
are incorporated herein by this reference. Unless the context otherwise
requires, terms used herein shall have the same meaning as in the Plan.
Determinations made pursuant to the Plan in connection with this option shall be
governed by the Plan as it exists on the date of this option agreement
("Agreement").
(b) The granting of this option shall be subject to receipt by the
Company of the Company's current form of HireWorks, Inc. Invention,
Confidentiality, and Non-Compete Agreement, executed and delivered by the
Employee.
2. GRANT AS INCENTIVE STOCK OPTION, OTHER OPTIONS. This option is
intended to qualify as an incentive stock option ("ISO") within the meaning of
Section 422 of the Internal Revenue Code of 1986 (the "Code"). This option is in
addition to any other options heretofore or hereafter granted to the Employee by
the Company, but a duplicate original of this instrument shall not effect the
grant of another option.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
(a) VESTING SCHEDULE. Except as otherwise provided in this
Agreement, and subject to all other terms and conditions of this Agreement, if
the Employee has continued to be employed by the Company through any applicable
date in the table below, this option may be exercised prior to the tenth
anniversary of the Grant Date (hereinafter the "Expiration Date") in
installments for not more than the number of shares set forth opposite such
applicable date:
March 31, 1998 0
March 31, 1999 26,250 shares
March 31, 2000 an additional 26,250 shares
March 31, 2001 an additional 26,250 shares
The right of exercise shall be cumulative so that if the option is not
exercised to the maximum extent permissible as of an applicable date, it shall
be exercisable, in whole or in part, with respect to all shares not so purchased
at any time prior to the Expiration Date or the earlier termination of this
option. Notwithstanding any other provision of this Agreement or the Plan, this
option may not be exercised at any time on or after the Expiration Date.
<PAGE>
Notwithstanding the foregoing vesting schedule, if the Company is to be
consolidated with or merged into another company where the Company is not the
survivor corporation or in which the Company is the survivor corporation but
becomes a wholly-owned subsidiary of another corporation, or if the Company is
acquired by another entity in an acquisition of all or substantially all of the
Company's assets or 70% or more of the Company's issued and outstanding shares
of capital stock (collectively, a "Company Sale"), then all outstanding shares
covered by this Option shall become exercisable in full (to the extent not
otherwise so exercisable) prior to the consummation of the Company Sale.
(b) METHOD OF EXERCISE. Subject to the terms and conditions
set forth in this Agreement, this option shall be exercised by the Employee's
delivery of written notice of exercise to the Treasurer of the Company,
specifying the number of shares to be purchased and the purchase price to be
paid therefor and accompanied by payment in full in accordance with Section 4
hereof. Such exercise shall be effective upon receipt by the Treasurer of the
Company of such written notice together with the required payment. The Employee
may purchase less than the number of shares covered hereby, provided that no
partial exercise of this option may be for any fractional share or for fewer
than 1000 whole shares.
(c) CONTINUOUS EMPLOYMENT REQUIRED. Except as otherwise
provided in this Section 3, this option may not be exercised unless the
Employee, at the time he or she exercises this option, is, and has been at all
times since the Grant Date, an employee of the Company. For all purposes of this
Agreement, (i) "employee" and "employment" shall be defined in accordance with
the provisions of Treasury Regulation Section 1.421-7(h) under the Code, or any
successor regulations, (ii) employment by a parent or subsidiary corporation of
the Company shall be deemed to be employment by the Company and (iii) if this
option shall be assumed or a new option substituted therefor in a transaction to
which Section 424(a) of the Code applies, employment by such assuming or
substituting corporation (hereinafter a "Successor Corporation") shall be
considered for all purposes of this option to be employment by the Company. As
used herein, the terms "parent" and "subsidiary" mean "parent corporation" and
"subsidiary corporation", respectively, as those terms are defined in Sections
424(e) and 424(f) or successor provisions of the Code.
(d) EXERCISE PERIOD UPON TERMINATION OF EMPLOYMENT. If the
Employee ceases to be employed by the Company for any reason, then, except as
provided in paragraphs (e) and (f) below, the right to exercise this option
shall terminate on the date which is three (3) months after the date of
cessation of employment (but in no event after the Expiration Date); provided,
however, that this option shall be exercisable only to the extent that the
Employee was entitled to exercise this option on the date of such cessation.
Notwithstanding the foregoing, if, in the judgment of the Company, the Employee,
prior to the provisions of any employment contract, confidentiality and
nondisclosure agreement or other agreement between the Employee and the Company,
the right to exercise this option shall terminate immediately upon written
notice to the Employee from the Company describing such violation.
<PAGE>
(e) EXERCISE PERIOD UPON DEATH OR DISABILITY. If the Employee
dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code)
prior to the Expiration Date while he or she is an employee of the Company, or
if the Employee dies within three (3) months after the date on which the
Employee ceases to be an employee of the Company (other than as the result of a
discharge for "cause" as specified in Paragraph (f) below), this option shall be
exercisable within the period of one (1) year following the date of death or
disability of the Employee (but in no event after the Expiration Date), by the
Employee or by the person to whom this option is transferred by will or the laws
of descent and distribution; provided, however, that this option shall be
exercisable only to the extent that this option was exercisable by the Employee
on the date of his or her death or disability. Except as otherwise indicated by
the context, the term "Employee", as used in this Agreement, shall include the
estate of the Employee, the Employee's personal representative, or any other
person who acquires the right to exercise this option by bequest or inheritance
or otherwise by reason of the death of the Employee or by reason of the
Employee's incapacity.
(f) DISCHARGE FOR CAUSE. If the Employee, prior to the
Expiration Date, is discharged by the Company for "cause" (as defined below),
the right to exercise this option shall terminate immediately upon such
discharge. "Cause" shall mean willful misconduct or willful failure by the
Employee to perform his or her employment responsibilities in the best interests
of the Company (including, without limitation, breach by the Employee of any
provision of any employment, nondisclosure, non-competition or other similar
agreement between the Employee and the Company), as determined by the Company,
which determination shall be conclusive. The Employee shall be considered to
have been discharged "for cause" if the Company determines, within thirty (30)
days after the Employee's resignation, that discharge for cause was warranted.
4. PAYMENT OF PURCHASE PRICE. Payment of the purchase price for shares
purchased upon exercise of this option shall be made by delivery to the Company
of cash or wire transfer or a check payable to the order of the Company in an
amount equal to the purchase price per share as hereinabove set forth times the
number of shares so purchased (the "exercise price").
5. DELIVERY OF SHARES.
(a) GENERAL. The Company shall, upon payment of the exercise
price for the number of shares purchased and paid for, make prompt delivery of
such shares to the Employee; provided, however, that if any law or regulation
requires the Company to take any action with respect to such shares before the
issuance thereof, then the date of delivery of such shares shall be extended for
the period necessary to complete such action.
(b) LISTING, REGISTRATION, QUALIFICATION, ETC. This option
shall be subject to the requirement that if, at any time, counsel to the Company
shall determine that the listing, registration or qualification of the shares
subject hereto upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any other condition
is necessary as a condition of, or in connection with, the issuance or purchase
of shares hereunder,
<PAGE>
this option may not be exercised, in whole or in part, unless such listing,
registration, qualification, consent or approval, disclosure or satisfaction of
such other condition shall have been effected or obtained on terms acceptable to
the Board of Directors of the Company. Nothing herein shall be deemed to require
the Company to apply for, effect or obtain such listing, registration,
qualification, or disclosure, or to satisfy such other condition.
6. NONTRANSFERABILITY OF OPTION. Except as provided in Paragraph (e) of
Section 3 hereof, this option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) nor shall any such rights be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this option or of such rights contrary to
the provisions hereof, or upon the levy of any attachment or similar process
upon this option or such rights, this option and such rights shall, at the
election of the Company, become null and void.
7. NO SPECIAL EMPLOYMENT RIGHTS. Nothing contained in the Plan or this
Agreement shall be construed or deemed by any person under any circumstances to
obligate the Company to continue the employment of the Employee for any period.
8. RIGHTS AS A SHAREHOLDER. The Employee shall have no rights as a
shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to vote or to receive
dividends or other distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered to the
Employee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
9. ADJUSTMENT PROVISIONS.
(a) GENERAL. If through, or as a result of, any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, (i) the outstanding shares of
Common Stock are increased or decreased or are exchanged for a different number
or kind of shares or other securities of the Company, or (ii) additional shares
or new or different shares or other securities of the Company or other non-cash
assets are distributed with respect to such shares of Common Stock or other
securities, the Employee shall, with respect to this option or any unexercised
portion hereof, be entitled to the rights and benefits, and be subject to the
limitations, set forth in Paragraph 14 of the Plan.
(b) BOARD AUTHORITY TO MAKE ADJUSTMENTS. Any adjustments under
this Section 9 shall be made by the Board of Directors of the Company, whose
determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive. No fractional shares will be
issued with respect to this option on account of any such adjustments.
(c) LIMITS ON ADJUSTMENTS. No adjustment shall be made under
this Section 9 which would, for purposes of any applicable provision of the
Code, constitute a modification, extension or renewal of this option or a grant
of additional benefits to the Employee.
<PAGE>
10. MERGERS, CONSOLIDATIONS, ASSET SALES, LIQUIDATIONS, ETC. In the
event of a consolidation or merger or sale of all or substantially all of the
assets of the Company in which outstanding shares of Common Stock are exchanged
for securities, cash or other property of any other corporation or business
entity, or in the event of the liquidation of the Company, prior to the
Expiration Date or other termination of this option, the Employee shall, with
respect to this option or any unexercised portion hereof, be entitled to the
rights and benefits, and be subject to the limitations, set forth in Paragraph
16 of the Plan.
11. WITHHOLDING OF TAXES. The Company's obligation to deliver shares
upon the exercise of this option shall be subject to the Employee's satisfaction
of all applicable federal, state and local income and employment tax withholding
requirements as described in Paragraph 23 of the Plan. Without limiting the
generality of the foregoing, if the Company in its discretion determines that it
is obligated to withhold tax with respect to a Disqualifying Disposition (as
defined in Section 12 hereof), the Employee agrees that the Company may withhold
from the Employee's wages the appropriate amount of federal, state and local
withholding taxes attributable to such Disqualifying Disposition. If any portion
of this option is treated as a Non-Qualified Option, the Employee agrees that
the Company may withhold from the Employee's wages the appropriate amount of
federal, state and local withholding taxes attributable to the Employee's
exercise of such Non-Qualified Option. At the Company's discretion, the amount
required to be withheld may be withheld in cash from such wages, or otherwise as
may be permitted under the Plan. The Employee further agrees that, if the
Company does not withhold an amount from the Employee's wages sufficient to
satisfy the Company's withholding obligation or if such obligation is not
otherwise satisfied, as determined by the Company, the Employee will reimburse
the Company on demand, in cash, for the amount underwithheld.
12. HOLDING PERIOD REQUIREMENTS FOR INCENTIVE STOCK OPTION SHARES. It
is understood and intended that this option shall qualify as an "incentive stock
option" as defined in Section 422 of the Code (an "ISO"). Accordingly, the
Employee understands that in order to obtain the beneficial tax treatment
accorded an ISO, no sale or other disposition may be made of any shares acquired
upon exercise of the option within one (1) year after the day of the transfer of
such shares to the Employee, nor within two (2) years after the Grant Date. If
the Employee intends to dispose, or does dispose (whether by sale, exchange,
gift, transfer or otherwise), of any such shares within either of said periods,
he or she will notify the Company in writing within ten (10) days after such
disposition (a "Disqualifying Dispositions").
13. INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS; LEGENDS.
(a) REPRESENTATIONS. The Employee represents, warrants and covenants
that:
(i) Any shares purchased upon exercise of this option
shall be acquired for the Employee's account for investment
only and not with a view to, or for sale in connection with,
any distribution of the shares in violation of the Securities
Act of 1933 (the "Securities Act") or any rule or regulation
under the Securities Act.
<PAGE>
(ii) The Employee has had such opportunity as he or
she has deemed adequate to obtain from representatives of the Company such
information as is necessary to permit the Employee to evaluate the merits and
risks of his or her investment in the Company.
(iii) The Employee is able to bear the economic risk
of holding shares acquired pursuant to the exercise of this option for an
indefinite period.
(iv) The Employee understands that (A) the shares
acquired pursuant to the exercise of this option will not be registered under
the Securities Act and are "restricted securities" within the meaning of Rule
144 under the Securities Act; (B) such shares cannot be sold, transferred or
otherwise disposed of unless they are subsequently registered under the
Securities Act or an exemption from registration is then available; (C) in any
event, an exemption from registration under Rule 144 or otherwise under the
Securities Act may not be available for at least two years and even then will
not be available unless a public market then exists for the Common Stock,
adequate information concerning the Company is then available to the public and
other terms and conditions of Rule 144 are complied with; and (D) there is now
no registration statement on file with the Securities and Exchange Commission
with respect to any stock of the Company and the Company has no obligation or
current intention to register any shares acquired pursuant to the exercise of
this option under the Securities Act.
(v) The Employee agrees that, if the Company offers
for the first time any of its Common Stock for sale pursuant to a registration
statement under the Securities Act, the Employee will not, without the prior
written consent of the Company, publicly offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, any shares purchased upon exercise
of this option for a period of ninety (90) days, or such longer period as the
Company may reasonably require, after the effective date of such registration
statement.
(vi) The Employee's principal residence is at the
address set forth below on the signature page. The Employee shall promptly
notify the Company of any change in the Employee's principal residence.
By making payment upon any exercise of this option, in whole or in part, the
Employee shall be deemed to have reaffirmed, as of the date of such payment, the
representations made in this Section 13.
(b) LEGENDS ON STOCK CERTIFICATES. All stock certificates
representing shares of Common Stock issued to the Employee upon exercise of this
option shall have affixed thereto legends substantially in the following forms,
in addition to any other legends required by applicable state law:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 and may not
be transferred, sold or otherwise disposed of in the absence
of an effective registration statement with respect to the
shares evidenced by this certificate, filed and made effective
under the Securities Act of
<PAGE>
1933, or an opinion of counsel satisfactory to the Company to
the effect that registration under such Act is not required."
14. TRANSFER AND OTHER RESTRICTIONS; COMPANY'S PURCHASE RIGHT. Except
as set forth in this Section 14, no disposition (whether by sale, exchange,
gift, transfer or otherwise) may be made of any shares acquired upon exercise of
this option, other than by will or the laws of descent and distribution.
(a) FIRST REFUSAL RIGHTS.
(i) If the Employee or the Employee's successor in
interest desires to sell all or any part of the shares acquired under this
option (including any securities received in respect thereof pursuant to
recapitalizations and the like), and an offeror (the "Offeror") has made an
offer therefor, which offer the Employee desires to accept, the Employee shall:
(y) obtain in writing an irrevocable and unconditional bona fide offer (the
"Bona Fide Offer") for the purchase thereof from the Offeror; and (z) give
written notice (the "Option Notice") to the President of the Company setting
forth the Employee's desire to sell such shares, which Option Notice shall be
accompanied by a photocopy of the original executed Bona Fide Offer and shall
set forth at least the name and address of the Offeror and the price and terms
of the Bona Fide Offer. Upon receipt of the Option Notice, the Company shall
have an option to purchase any or all of the shares specified in the Option
Notice, such option to be exercisable by giving, within thirty (30) days after
receipt of the Option Notice, a written counter-notice to the Employee. If the
Company elects to purchase, the Employee shall be obligated to sell to the
Company such shares at the price and terms indicated in the Bona Fide Offer
within sixty (60) days from the date of receipt by the Company of the Option
Notice. The Company's purchase rights under this Section 14 are assignable by
the Company.
(ii) Subject to Paragraph 14(b) below, the Employee
may sell, pursuant to the terms of the Bona Fide Offer, any or all of such
shares not purchased by the Company or which the Company does not elect to
purchase in the manner set forth hereinabove after the expiration of the 30-day
period during which the Company may give the aforesaid counter-notice; provided,
however, that the Employee may not sell such shares to the Offeror if the
Offeror is (w) a competitor of the Company, or (x) a person that controls, is
controlled by or under common control with a competitor of the Company, or (y) a
member of management of a competitor of the Company (any person described in
clauses (w) through (y) being hereinafter referred to as a "Competitor") or (z)
a person or entity to which the Board of Directors determines, in its sole
discretion, that a transfer of shares of the Company would be against the
Company's best interest, and the Company gives to the Employee, within thirty
(30) days of its receipt of the Option Notice, written notice stating that the
Employee shall not sell the shares to the Offeror; and provided, further, that
prior to the sale of any such shares to the Offeror, the Offeror shall execute
an agreement with the Company under which the Offeror agrees not to become a
Competitor of the Company and further agrees to be subject to the restrictions
set forth in this Agreement. If any or all of such shares are not sold pursuant
to a Bona Fide Offer within the time permitted above, the unsold shares shall
remain subject to the terms of this Agreement.
<PAGE>
(iii) The first refusal rights of the Company set
forth above shall remain in effect until the closing of an initial underwritten
public offering of the Company's Common Stock pursuant to a registration
statement filed under the Securities Act of 1933, as amended, or a successor
statute, at which time the first refusal rights set forth herein will
automatically expire.
(b) COMPANY'S S CORPORATION STATUS.
(i) The Employee understands and acknowledges that
the Company has made an election under Section 1362(a) of the Code to be taxed
as an "S corporation" ("S Election"), that this tax status is in the best
interests of the Company and its shareholders, and that the Company's S Election
may be terminated and such status may be lost as a result of any transfer of the
Company's stock to an ineligible shareholder, or by the Company having more than
seventy-five (75) shareholders, or by certain other actions or events.
Accordingly, the Employee agrees that the Employee will not:
(A) Transfer any share of stock of the
Company unless (y) in the opinion of counsel to the Company such transfer will
not adversely affect the Company's S Election, and (z) the transferee consents
in writing to be bound by the provisions of this Section 14 and consents in
writing to the continuation of the Company's S Election. Any attempt by the
Employee to transfer any of the shares of stock received as a result of the
exercise of this option in contravention of the foregoing shall be null and void
ab initio. Nothing contained herein shall be construed to permit a transfer of
stock of the Company if the transfer is otherwise restricted by the terms of
this Agreement, by any governmental statute, regulation or rule, or by the terms
of any other agreement to which the Employee is a party.
(B) File any document with the Internal
Revenue Service, or take any other action, resulting in the termination of the
Company's S Election.
(C) Fail to sign or file any consent or
other document with the Internal Revenue Service deemed necessary by counsel to
the Company for the preservation of the Company's S Election.
(D) Fail to take any other action from time
to time considered necessary or advisable by counsel to the Company for the
preservation of the Company's S Election.
(E) Change his or her residence or take any
other action such that the Employee would not be either a resident of the United
States or a citizen of the United States without giving thirty (30) days prior
written notice to the Company and offering the Company the right to repurchase
all of his or her shares of Common Stock at a price determined pursuant to
Section 14(c)(ii) hereof before making such change of residence or citizenship.
(ii) In the event of an inadvertent termination of
the Company's S Election, whether as a result of a transfer of stock or for any
other reason, and prior to any termination of said election by a valid written
revocation under Section 1362(d)(1) of the Code,
<PAGE>
the Employee agrees to make any necessary adjustments under Section 1362(f)(4)
of the Code in order to continue the treatment of the Company as an S
corporation under the Code. The Employee agrees that any such adjustment shall
be effective as of the date of such inadvertent termination.
(iii) The Employee agrees to indemnify and hold
harmless the Company and the Company's other shareholders from any and all
damages, losses or other financial injuries sustained by it or them as a result
of the Employee's failure to comply with the terms and provisions of this
paragraph (b).
(iv) The Company may choose to terminate its S
Election at any time without any notice to the Employee. The Company shall have
no liability to the Employee for any termination of its S Election, regardless
of the reason for such termination.
15. MISCELLANEOUS.
(a) Except as otherwise expressly provided herein, this
Agreement may not be amended or otherwise modified unless evidenced in writing
and signed by the Company and the Employee.
(b) All notices under this Agreement shall be delivered by
hand, sent by commercial overnight courier service or sent by registered or
certified mail, return receipt requested, and first-class postage prepaid, to
the parties at their respective addresses set forth beneath their names below or
at such other address as may be designated in a notice by either party to the
other. Notwithstanding the foregoing, any notice sent to such an address in a
country other than that from which the notice is sent may be sent by telefax,
telegram or commercial air courier.
(c) Any reference in this Agreement to a Section of the Code
shall refer to that Section as it reads as of the date of this Agreement and as
it may be amended from time to time, and to any successor provision.
(d) Each provision of this Agreement shall be considered
separable. The invalidity or unenforceability of any provision shall not affect
the other provisions, and this Agreement shall be construed in all respects as
if such invalid or unenforceable provision were omitted.
(e) Sections 12, 13, 14 and 15 hereof shall survive any
termination of this Agreement.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(g) The failure of the Company or the Employee to insist upon
strict performance of any provision hereunder, irrespective of the length of
time for which such failure continues,
<PAGE>
shall not be deemed a waiver of such party's right to demand strict performance
at any time in the future. No consent or waiver, express or implied, to or of
any breach or default in the performance of any obligation or provision
hereunder shall constitute a consent or waiver to or of any other breach or
default in the performance of the same or any other obligation hereunder.
(h) Except for the right of any party to apply to a court of
competent jurisdiction for a temporary restraining order, preliminary
injunction, or other equitable relief to preserve the status quo or prevent
irreparable harm pending the selection and confirmation of an arbitrator, any
controversy or claim arising out of or relating to this Agreement, including
without limitation claims under the Americans with Disabilities Act, the Age
Discrimination in Employment Act of 1967, as amended, Title VII of the Civil
Rights Act of 1964 as amended, Massachusetts General Laws Chapter 151B, or any
other applicable state or federal statutory or common law; shall be resolved by
arbitration in Boston, Massachusetts, in accordance with the governing rules of
the American Arbitration Association (the "AAA"). A demand for arbitration shall
be filed with the AAA during the term, or within six months after termination or
expiration, of this Agreement. The arbitrator shall have the authority to permit
discovery, to the extent deemed appropriate by the arbitrator, upon the request
of a party and to grant any type of injunctive relief as well as award damages;
provided, however, the arbitrator shall have no authority to award multiple or
punitive damages. The costs of the arbitration proceeding, including the fee of
the arbitrator, shall be borne equally by the parties. Each party shall bear the
costs of its own counsel. Judgment upon the award entered may be enforced by any
court of competent jurisdiction.
Date of Grant: December 1, 1998
HireWorks, Inc.
By: /s/ Henry M. Margolis
------------------------------
Title: President
----------------------------
Address:
--------------------------
--------------------------
<PAGE>
Employee's Acceptance
The undersigned hereby accepts the foregoing option and agrees to the
terms and conditions of this Agreement. The undersigned hereby acknowledges
receipt of a copy of the Company's 1998 Stock Option/Stock Issuance Plan.
Deborah Hamill
/s/ Deborah Hamill
--------------------------------------
Signature
Address:
------------------------------
------------------------------
<PAGE>
EXHIBIT 5.1
GOODWIN, PROCTER & HOAR LLP
COUNSELORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
July 8, 1999
Webhire, Inc.
91 Hartwell Avenue
Lexington, Massachusetts 02421
Re: REGISTRATION STATEMENT OF FORM S-8
Ladies and Gentlemen:
This opinion is furnished in connection with the registration, pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), of 64,249
shares (the "Shares") of common stock, par value $.01 per share (the "Common
Stock"), of Webhire, Inc., a Delaware corporation (the "Company").
In connection with rendering this opinion, we have examined copies of
those certain Incentive Stock Option Agreements dated December 1, 1998 (the
"Incentive Stock Option Agreements"), a registration statement on Form S-8 under
the Securities Act relating to the Shares (the "Registration Statement") and the
prospectus contained therein (the "Prospectus"), the Company's Third Amended and
Restated Certificate of Incorporation, the Company's Amended and Restated
By-Laws, and such records of the corporate proceedings of the Company as we
deemed material or appropriate for the purposes of this opinion.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America, the Commonwealth of
Massachusetts and the Delaware General Corporation Law.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued and paid for in accordance with the terms of the Prospectus and
the Incentive Stock Option Agreements, the Shares will be legally issued, fully
paid and nonassessable shares of the Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated
December 16, 1998 included in Webhire, Inc.'s (f/k/a Restrac, Inc.) Form 10-K
for the year ended September 30, 1998.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
July 7, 1999
