<PAGE>
As filed with the Securities and Exchange Commission on October 14, 1999
REGISTRATION STATEMENT NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
WEBHIRE, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 04-2935271
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
91 HARTWELL AVENUE
LEXINGTON, MA 02421
(781) 869-5000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
-------------------------------
MARTIN J. FAHEY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
WEBHIRE, INC.
91 HARTWELL AVENUE
LEXINGTON, MA 02421
(781) 869-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
-----------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act Registration Statement number of the earlier
effective Registration Statement for the same offering. [ ] ___________________
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act Registration Statement number of the earlier effective Registration
Statement for the same offering. [ ] ____________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Title of Shares Being Proposed Maximum Proposed Maximum Amount of
Registered Amount to Be Registered Offering Price Per Share(1) Aggregate Offering Price(1) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 234,055 $9.6875 $2,267,408 $630.34
$.01 per share
=================================================================================================================================
</TABLE>
(1) Estimated solely for purposes of determining the registration fee, based on
the average of the high and low sales prices for the Company's common stock
as reported on the Nasdaq National Market on October 7, 1999, in accordance
with Rule 457(c) under the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
[begin red herring]
The information in this prospectus is not complete and may be changed. These
securities may not be sold until the Registration Statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
[end red herring]
SUBJECT TO COMPLETION. DATED OCTOBER 14, 1999
PROSPECTUS
234,055 SHARES OF COMMON STOCK
WEBHIRE, INC.
------------------
The selling stockholders identified on page 2 of this prospectus may use
this prospectus to offer and sell up to an aggregate of 234,055 shares of our
common stock. For additional information on the methods of the sale, you should
refer to the section entitled "Plan of Distribution" on page 3. We will not
receive any cash proceeds from the sale of these shares by the selling
stockholders.
Our common stock is quoted on the Nasdaq National Market under the
symbol "HIRE".
Our corporate headquarters are located at 91 Hartwell Avenue, Lexington,
Massachusetts 02421, and our telephone number is (781) 869-5000.
-------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. IT IS ILLEGAL FOR ANY PERSON TO TELL YOU
OTHERWISE.
The date of this prospectus is October __, 1999
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement on Form S-3 that we
filed with the Securities and Exchange Commission under the Securities Act of
1933. This prospectus and any accompanying prospectus supplement do not contain
all of the information included in the Registration Statement. For further
information, we refer you to the Registration Statement, including its exhibits.
Statements contained in this prospectus and any accompanying prospectus
supplement about the provisions or contents of any agreement or other document
are not necessarily complete. If the SEC's rules and regulations require that we
file such agreement or document as an exhibit to the Registration Statement, or
if we otherwise filed such agreement or document, please see such agreement or
document for a complete description of these matters.
This prospectus provides you with a general description of the offered
shares. Each time a selling stockholder sells any of the offered shares, the
selling stockholder will provide you with this prospectus and a prospectus
supplement, if applicable, that will contain specific information about the
terms of the offering. The prospectus supplement may also add, update or change
any information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information".
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information about the
Public Reference Room. Our SEC filings are also available to the public from the
SEC's Web site at http://www.sec.gov. Our common stock is quoted on the Nasdaq
National Market, and reports, proxy and information statements and other
information concerning Webhire may be inspected at the Nasdaq Stock Market at
1735 K Street, N.W., Washington, D.C. 20006.
The SEC allows us to incorporate by reference the information we file
with them into this prospectus, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede the information already incorporated by reference. We are
incorporating by reference the documents listed below, which we have already
filed with the SEC, and any future filings we make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, until the
selling stockholders sell all of the shares that are being offered in this
prospectus.
1. Our Annual Report on Form 10-K for the year ended September 30, 1998
(File No. 0-20735);
2. Our Quarterly Report on Form 10-Q for the quarter ended December 31,
1998 (File No. 0-20735);
3. Our Quarterly Report on Form 10-Q for the quarter ended March 31, 1999
(File No. 0-20735);
4. Our Quarterly Report on Form 10-Q for the quarter ended June 30, 1999
(File No. 0-20735);
5. Our Current Reports on Form 8-K, filed with the SEC on December 4, 1998
(File No. 0-20735) and October 13, 1999; and
6. The description of our common stock set forth in our Registration
Statement on Form 8-A, filed with the SEC on June 21, 1996 and any
amendments or reports filed for the purpose of updating this description
(File No. 0-20735).
YOU MAY REQUEST A COPY OF THESE FILINGS, AND ANY EXHIBITS WE HAVE
SPECIFICALLY INCORPORATED BY REFERENCE AS AN EXHIBIT IN THIS PROSPECTUS, AT NO
COST BY WRITING OR TELEPHONING US AT THE FOLLOWING ADDRESS: WEBHIRE, INC., 91
HARTWELL AVENUE, LEXINGTON, MA 02421, ATTENTION: CHIEF FINANCIAL OFFICER. OUR
TELEPHONE NUMBER IS 781-869-5000.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone to provide you with different information. The selling stockholders are
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or the
documents incorporated by reference is accurate as of any date other than the
date on the front of this prospectus or those documents.
1
<PAGE>
USE OF PROCEEDS
The proceeds from the sale of the common stock offered pursuant to this
prospectus are solely for the account of the selling stockholders. Accordingly,
we will not receive any proceeds from the sale of the shares by the selling
stockholders.
REGISTRATION RIGHTS OF THE SELLING STOCKHOLDERS
On July 9, 1999, we issued an aggregate of 312,072 shares of common
stock to the selling stockholders. We issued the shares pursuant to the terms of
a merger agreement under which we acquired HireWorks, Inc. from the selling
stockholders. The following is a summary of the material terms and provisions of
the registration rights agreement we entered into with the selling stockholders
in connection with our acquisition of HireWorks. This summary may not contain
all the information that is important to you. You can obtain complete
information by referring to the registration rights agreement, which has been
filed as an exhibit to the Registration Statement of which this prospectus is a
part.
In connection with our acquisition of HireWorks, we agreed to file a
Registration Statement, at the request of the selling stockholders, that would
cover sales by the selling stockholders of the shares of common stock that they
received in consideration of their sale to us of HireWorks. We also agreed to
use our best efforts to cause the SEC to declare the Registration Statement
effective and to keep the Registration Statements continuously effective until
specified dates. On August 24, 1999, the selling stockholders requested that we
register 234,055 of the 312,072 shares that they received in connection with the
HireWorks acquisition.
The registration rights agreement allows us to suspend use of this
prospectus in some circumstances. In addition, any shares of common stock sold
by the selling stockholders pursuant to this prospectus will no longer be
entitled to the benefits of the registration rights agreement.
The registration rights agreement requires us to bear the expenses of
registering the sale of the shares of common stock. We also agreed to indemnify
the selling stockholders and each person controlling any of them against all
claims, losses, damages, liabilities and expenses arising under the securities
laws in connection with the Registration Statement or this prospectus, subject
to limitations specified in the registration rights agreement. In addition, the
selling stockholders agreed to indemnify us, and our directors, officers and
other stockholders and any person controlled by or under common control with us
or any of our officers, directors or other stockholders against all losses,
claims, damages, expenses and liabilities arising under the securities laws if
they result from either an untrue statement or omission based upon information
furnished to us by the selling stockholders for use in the Registration
Statement or this prospectus, or the failure by the selling stockholders to
provide an offeree with an updated prospectus we have filed with the SEC.
THE SELLING STOCKHOLDERS
The following table sets forth the number of shares of our common stock
beneficially owned by the selling stockholders as of October 4, 1999, the number
of shares of common stock covered by this prospectus and the total number of
shares of common stock which the selling stockholders will beneficially own upon
completion of this offering. The number of shares beneficially owned includes
any shares held by the selling stockholders that are currently exercisable or
are exercisable within 60 days following October 4, 1999. This table assumes
that the selling stockholders will offer for sale all of the shares of common
stock offered by this prospectus, although there is no guarantee that they will
do so.
The shares of common stock offered by this prospectus will be offered
from time to time by the selling stockholders named below. The amounts set forth
below are based upon information provided to us by the selling stockholders as
of October 4, 1999 and are accurate to the best of our knowledge. It is
possible, however, that the selling stockholders may acquire or dispose of
additional shares of common stock from time to time after the date of this
prospectus.
The percentage of our shares of common stock that will be held by each
selling stockholder after completion of this offering will be less than one
percent (1%), assuming each stockholder sells all of the shares offered by this
prospectus. The total number of shares of common stock outstanding used in
calculating this percentage is based on the total number of shares of common
stock outstanding as of October 4, 1999. None of the selling stockholders has a
material relationship with us, except that Henry M. Margolis is our Vice
President of Strategic Marketing and Deborah Hamill is our Director of
Engineering.
2
<PAGE>
<TABLE>
<CAPTION>
COMMON STOCK
BENEFICIALLY COMMON STOCK COMMON STOCK TO BE
OWNED AS OF COVERED BY THIS BENEFICIALLY OWNED
NAME OCTOBER 4, 1999 PROSPECTUS AFTER OFFERING
- ---- --------------- ---------- --------------
<S> <C> <C> <C>
Deborah Hamill 91,785 20,652 71,133
Brian K. Kelley 91,786 68,840 22,946
Henry M. Margolis 192,750 144,563 48,187
---------- ---------- ----------
TOTAL 376,321 234,055 142,266
========== ========== ========
</TABLE>
PLAN OF DISTRIBUTION
This prospectus relates to the possible offer and sale from time to
time of up to an aggregate of 234,055 shares of our common stock by the selling
stockholders. We are registering the sale of the shares of common stock pursuant
to our obligations under the registration rights agreement, but the registration
of the sale of the shares of common stock does not necessarily mean that any of
the shares of common stock will be offered or sold by the selling stockholders.
Subject to our rights under the registration rights agreement to prohibit the
sale of the shares offered hereby for a limited period of time under certain
circumstances, the selling stockholders will act independently of us in
marketing decisions with respect to the timing, manner and size of each sale.
The distribution of the shares of common stock may be effected from
time to time in one or more underwritten transactions at a fixed price or
prices, which may be changed, at market prices prevailing at the time of sale,
at prices related to prevailing market prices or at negotiated prices. Any
underwritten offering may be on a "best efforts" or a "firm commitment" basis.
In an underwritten offering, underwriters or agents may receive compensation in
the form of discounts, commissions or concessions from the selling stockholders.
Underwriters may sell the shares of common stock to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters. Such dealers may also receive commissions
from the purchasers for whom they may act as agents.
The selling stockholders and any underwriters, dealers or agents that
participate in the distribution of the shares of common stock may be deemed to
be underwriters under the Securities Act of 1933, and any profit on the sale of
the shares of common stock by them and any discounts, commissions or concessions
received by any underwriters, dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act of 1933. At any
time a particular offer of shares of common stock is made by the selling
stockholders, a prospectus supplement, if required, will be distributed that
will, where applicable:
- identify any underwriter, dealer or agent;
- describe any compensation in the form of discounts,
concessions, commissions or otherwise received by each
underwriter, dealer or agent and in the aggregate to all
underwriters, dealers and agents;
- identify the amounts underwritten;
- identify the nature of the underwriter's obligation to take
the shares of common stock; and
- provide any other required information.
The sale of shares of common stock by the selling stockholders may also
be effected by selling shares of common stock directly to purchasers or to or
through broker-dealers. In connection with any such sale, any such broker-dealer
may act as agent for the selling stockholders or may purchase from the selling
stockholders all or a portion of the shares of common stock as principal, and
may be made pursuant to any of the methods described below. Such sales may be
made in the over-the-counter market, in negotiated transactions, on any exchange
or exchanges on which the shares are then traded or otherwise, at prices and at
terms then prevailing or at prices related to the then-current market prices or
at prices otherwise negotiated.
3
<PAGE>
Shares of common stock may also be sold in one or more of the following
transactions:
- block transactions in which a broker-dealer may sell all or a
portion of such shares as agent but may position and resell
all or a portion of the block as principal to facilitate the
transaction;
- purchases by any such broker-dealer as principal and resale by
such broker-dealer for its own account pursuant to any
supplement to this prospectus;
- a special offering, an exchange distribution or a secondary
distribution in accordance with applicable stock exchange
rules;
- ordinary brokerage transactions and transactions in which any
such broker-dealer solicits purchasers;
- sales "at the market" to or through a market maker or into an
existing trading market, on an exchange or otherwise, for such
shares; and
- sales in other ways not involving market makers or established
trading markets, including direct sales to purchasers.
In effecting sales, broker-dealers engaged by the selling stockholders
may arrange for other broker-dealers to participate. Broker-dealers will receive
commissions or other compensation from the selling stockholders in amounts to be
negotiated prior to the sale that will not exceed those customary in the types
of transactions involved. Broker-dealers may also receive compensation from
purchasers of the shares of common stock which is not expected to exceed that
customary in the types of transactions involved.
To comply with applicable state securities laws, the shares of common
stock will be sold, if necessary, in such jurisdictions only through registered
or licensed brokers or dealers. In addition, shares of common stock may not be
sold in some states unless they have been registered or qualified for sale in
the state or an exemption from such registration or qualification requirement is
available and is complied with.
All expenses relating to the offering and sale of the shares of common
stock will be paid by us, with the exception of commissions, discounts and fees
of underwriters, broker-dealers or agents who may be engaged by the selling
stockholders in connection with the sale of the shares registered hereunder,
transfer taxes on the shares and any legal, accounting and other expenses
incurred by the selling stockholders other than up to $5,000 in legal fees for
one counsel to the selling stockholders which we have agreed to pay on behalf of
the selling stockholders. We also have agreed to indemnify the selling
stockholders against certain claims, losses, damages, liabilities and expenses,
including liabilities under the Securities Act of 1933.
VALIDITY OF THE COMMON STOCK
The validity of the shares of common stock offered by this prospectus
will be passed upon for us by McDermott, Will & Emery.
4
<PAGE>
================================================================================
You should rely only on the information contained in this prospectus,
incorporated herein by reference or contained in a prospectus supplement.
Neither we nor the selling stockholders have authorized anyone else to provide
you with different or additional information. The selling stockholders are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus, or
incorporated herein by reference, or in any prospectus supplement is accurate as
of any date other than the date on the front of those documents.
---------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
About This Prospectus.......................... 1
Where You May Find More Information............ 1
Use of Proceeds................................ 2
Registration Rights of the Selling
Stockholders................................... 2
The Selling Stockholders....................... 2
Plan of Distribution........................... 3
Validity of the Common Stock................... 4
</TABLE>
================================================================================
================================================================================
234,055 SHARES COMMON STOCK
WEBHIRE, INC.
----------------------------
PROSPECTUS
----------------------------
OCTOBER __, 1999
----------------------------
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
The following table sets forth the estimated fees and expenses payable by us
in connection with the issuance and distribution of the securities registered
hereby:
<TABLE>
<S> <C>
Registration fee..................................... $ 630
Legal fees and expenses.............................. 15,000
Accounting fees and expenses......................... 5,000
Printing and duplicating expenses.................... 1,000
Blue sky fees and expenses........................... 1,000
Miscellaneous........................................ 5,000
---------
Total................................................ $ 27,630
</TABLE>
- -------
* All amounts except the registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a
corporation to indemnify its directors, officers, employees and agents against
certain liabilities they may incur in such capacities, including liabilities
under the Securities Act of 1933, provided they act in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation. Webhire's certificate of incorporation and bylaws require Webhire
to indemnify its officers and directors to the full extent permitted by Delaware
law.
Section 102 of the Delaware General Corporation Law authorizes a
corporation to limit or eliminate its directors' liability to the corporation or
its stockholders for monetary damages for breaches of fiduciary duties, other
than for (a) breaches of the duty of loyalty, (b) acts or omissions involving
bad faith, intentional misconduct or knowing violations of the law, (c) unlawful
payments of dividends, stock purchases or redemptions, or (d) transactions from
which a director derives an improper personal benefit. Webhire's certificate of
incorporation contains provisions limiting the liability of the directors to
Webhire and to its stockholders to the full extent permitted by Delaware law.
Section 145 of the Delaware General Corporation Law authorizes a
corporation to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation against any
liability asserted against him and incurred by him or her in any such capacity,
or arising out of his or her status as such. Webhire's bylaws provide that
Webhire may, to the full extent permitted by law, purchase and maintain
insurance on behalf of any director, officer, employee or agent of Webhire
against any liability that may be asserted against him or her, and Webhire
currently maintains such insurance. Webhire currently has $25 million of
liability insurance covering its directors and officers for claims asserted
against them or incurred by them in such capacity, including claims brought
under the Securities Act.
The Company has also entered into Indemnity Agreements with Messrs.
Perkins, Costello, Campanello and former director Mr. Johnston in order to
induce their services on the Board of Directors of the Company. These agreements
provide each of the directors with a contractual right to indemnification, to
the extent permitted by Delaware law and Webhire's certificate of incorporation,
for certain expenses they may incur due to suits brought against them in their
capacity as directors of Webhire.
The foregoing provisions and agreements could reduce the legal remedies
available to Webhire and its stockholders against Webhire's directors and
officers.
In connection with this offering, the selling stockholders have agreed
to indemnify our directors and officers against all losses, claims, damages,
expenses and liabilities arising under the securities laws to the extent they
result from either information furnished to us by the selling stockholders for
use in this Registration Statement or the prospectus of which it is a part or
the failure by the selling stockholders to provide an offeree with an updated
prospectus we have filed with the SEC.
II-1
<PAGE>
<TABLE>
<CAPTION>
ITEM 16. EXHIBITS.
<S> <C>
4.1 Form of Third Amended and Restated Certificate of
Incorporation of Webhire, Inc. (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 SEC on May 10,
1996.)
4.2 Amended and Restated By-laws of Webhire, Inc. (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 SEC
on May 10, 1996.)
*5.1 Opinion of McDermott, Will & Emery as to the legality of the
securities being registered.
23.1 Consent of McDermott, Will & Emery (included as part of
Exhibit 5.1 hereto).
*23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.
24.1 Powers of Attorney (included on signature page of Registration
Statement).
*99.1 Registration Rights Agreement, dated July 9, 1999, by and
among Webhire and the holders named therein.
</TABLE>
- ----------------------------------
* Filed herewith
II-2
<PAGE>
ITEM 17. 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 of
1933;
(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
that which was registered) and any deviation
from the low or high end 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 a 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) do
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 registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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; and
(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
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 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 of 1933 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 SEC such indemnification is
against public policy as expressed in the Securities Act of
1933 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 of 1933 and will be governed by the final
adjudication of such issue.
II-3
<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-3 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 this
13th day of October, 1999.
WEBHIRE, INC.
By: /s/ MARTIN J. FAHEY
-------------------------------------------
Martin J. Fahey
President and Chief Executive Officer
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints each of Martin J. Fahey and Cynthia G. Eades as
such person's true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for such person in such person's name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement (or any Registration
Statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933), and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the SEC,
granting unto each said attorney-in-fact and agent full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that any said
attorney-in-fact and agent, or any substitute or substitutes of any of them, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ LARS D. PERKINS Chairman of the Board of Directors October 13, 1999
-----------------------------------------
Lars D. Perkins
/s/ MARTIN J. FAHEY President, Chief Executive Officer and October 13, 1999
----------------------------------------- Director (Principal Executive Officer)
Martin J. Fahey
/s/ RUSSELL J. CAMPANELLO Director October 13, 1999
------------------------------------------
Russell J. Campanello
/s/ J. PAUL COSTELLO Director October 13, 1999
------------------------------------------
J. Paul Costello
/s/ CHARLES R. LAX Director October 13, 1999
------------------------------------------
Charles R. Lax
/s/ CYNTHIA G. EADES Chief Financial Officer October 13, 1999
------------------------------------------ (Principal Financial Officer and Principal
Cynthia G. Eades Accounting Officer)
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
4.1 Form of Third Amended and Restated Certificate of Incorporation of Webhire,
Inc. (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 SEC on May 10, 1996.)
4.2 Amended and Restated By-laws of Webhire, Inc. (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 SEC on May 10, 1996.)
*5.1 Opinion of McDermott, Will & Emery as to the legality of the securities being
registered.
23.1 Consent of McDermott, Will & Emery (included as part of Exhibit 5.1 hereto).
*23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Powers of Attorney (included on signature page of Registration Statement).
*99.1 Registration Rights Agreement, dated July 9, 1999, by and
among Webhire and the holders named therein.
</TABLE>
- ----------------------------------
* Filed herewith
<PAGE>
EXHIBIT 5.1
October 13, 1999
Webhire, Inc.
91 Hartwell Avenue
Lexington, Massachusetts 02421
Ladies and Gentlemen:
This opinion is furnished in our capacity as counsel to Webhire, Inc.,
a Delaware corporation (the "Company"), in connection with the registration,
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), of
234,055 shares (the "Shares") of common stock, par value $.01 per share, of the
Company.
In connection with rendering this opinion, we have examined the
Certificate of Incorporation and the Bylaws of the Company, each as amended to
date; such records of the corporate proceedings of the Company as we have deemed
material; a registration statement on Form S-3 under the Securities Act (the
"Registration Statement") relating to the Shares and the prospectus contained
therein (the "Prospectus"); and such other certificates, receipts, records and
documents as we considered necessary 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 jurisdiction
other than the laws of the United States of America and the Commonwealth of
Massachusetts and the Delaware General Corporation Law.
Based upon the foregoing, we are of the opinion that the Shares are
duly authorized, legally issued, fully paid and nonassessable by the Company
under the Delaware General Corporation Law.
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 and to the reference to our firm under the caption
"Validity of the Common Stock" in the Prospectus.
Very truly yours,
/s/ McDermott, Will & Emery
MCDERMOTT, WILL & EMERY
<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-3 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
October 7, 1999
<PAGE>
Exhibit 99.1
================================================================================
REGISTRATION RIGHTS AGREEMENT
By and Among
WEBHIRE, INC.,
a Delaware corporation,
and
THE PRINCIPAL STOCKHOLDERS,
as defined herein
July 9, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I. REGISTRATION RIGHTS.............................................................................1
Section 1.01. Form S-3 Shelf Registration Statement..................................................1
Section 1.02. Registrable Securities.................................................................3
Section 1.03. Further Obligations of the Company and the Principal Stockholders......................3
Section 1.04. Indemnification........................................................................5
Section 1.05. Rule 144 Requirements..................................................................7
Section 1.06. Transfer of Registration Rights........................................................7
Section 1.07. Market Stand-Off.......................................................................7
ARTICLE II. MISCELLANEOUS PROVISIONS........................................................................7
Section 2.01. Legend on Securities...................................................................7
Section 2.02. Amendment and Waiver...................................................................8
Section 2.03. Notices................................................................................8
Section 2.04. Headings..............................................................................10
Section 2.05. Counterparts..........................................................................10
Section 2.06. Severability..........................................................................10
Section 2.07. Entire Agreement......................................................................10
Section 2.08. Term of Agreement.....................................................................11
Section 2.09. Law Governing.........................................................................11
</TABLE>
(i)
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is dated as of the 9th day of July, 1999, by and among
Webhire, Inc., a Delaware corporation (the "Company"), and Henry M. Margolis,
Deborah Hamill and Brian K. Kelley (collectively the "Principal Stockholders,"
and each individually a "Principal Stockholder").
WHEREAS, the parties to this Agreement are parties to a certain
Agreement and Plan of Merger (the "Merger Agreement") dated as of the date
hereof pursuant to which the parties thereto agreed to merge (the "Merger") the
Company's wholly-owned subsidiary, HWK Acquisition Corp. ("Acquisition Corp"),
with and into HireWorks, Inc., a Delaware corporation ("HireWorks") of which the
Principal Stockholders are the holders of all of the outstanding shares of
capital stock;
WHEREAS, as partial consideration for the Merger, the Principal
Stockholders will receive shares (the "Principal Stockholder Shares") of the
Company's common stock, par value $.01 per share ("Common Stock"), in accordance
with the terms of the Merger Agreement;
WHEREAS, the execution of this Agreement is an inducement and a
condition precedent to the merger of Acquisition Corp. with and into Hire Works
pursuant to the Merger Agreement.
NOW, THEREFORE, the Company and the Principal Stockholders, in
consideration of the premises and mutual covenants herein, intending to be
legally bound, hereby agree as follows:
ARTICLE I. REGISTRATION RIGHTS
SECTION 1.01. FORM S-3 SHELF REGISTRATION STATEMENT.
From and after the date hereof and until the termination of this
Agreement, the Company shall use its best efforts to continue to qualify at all
times for registration of secondary sales of Common Stock on Form S-3 or any
comparable successor form. The Principal Stockholders, individually or as a
group, shall have the right to request and have effected an aggregate of one (1)
registration of shares of Registrable Securities on Form S-3 or such successor
form for a public offering of shares of Registrable Securities on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act"), PROVIDED, HOWEVER, that the aggregate proposed
offering price for such shares of Registrable Securities is not less than
$500,000 (such requests shall be in writing and shall state the number of shares
of Registrable Securities to be disposed of). Upon receipt of any such request,
the Company will use its best efforts to cause such of the Registrable
Securities as may be requested by any Principal Stockholders (including the
Principal
<PAGE>
Stockholder or Principal Stockholders giving the initial notice of intent to
register hereunder) to be registered under the Securities Act subject to the
terms of this Agreement. The Company may postpone the filing of any registration
statement required hereunder for a reasonable period of time, not to exceed
ninety (90) days or such lesser period of time as may be permitted pursuant to
the last paragraph of this Section 1.01 (the "Postponement Period"), if the
Company has been advised by legal counsel that such filing would require the
disclosure of a material transaction or other factor and the Board of Directors
of the Company determines reasonably and in good faith that such disclosure
would have a material adverse effect on the Company. The Company shall give
notice to all Principal Stockholders of the receipt of a request for
registration pursuant to this Section 1.01 and such Principal Stockholders shall
have the right, by giving written notice to the Company within thirty (30)
business days after such notice referred to in the preceding sentence has been
given by the Company, to elect to have included in such registration statement
such of their Registrable Securities as each Principal Stockholder may request
in such notice of election. Subject to the foregoing, the Company will use its
best efforts to effect promptly the registration of all shares of Registrable
Securities on Form S-3 on a delayed or continuous basis pursuant to Rule 415
under the Securities Act or such successor form to the extent requested by the
Principal Stockholder or Principal Stockholders thereof. All expenses incurred
in connection with a registration requested pursuant to this Section 1.01,
including, without limitation, all registration, qualification, printing, and
accounting fees, fees and disbursements of counsel for the Company and up to
$5,000 in fees and disbursements of one counsel for the selling Principal
Stockholder or Principal Stockholders, shall be borne by the Company, except
that the Principal Stockholders shall bear underwriting commissions attributable
to their Registrable Securities being registered, transfer taxes on shares being
sold by such Principal Stockholders and, except as provided above, the fees and
disbursements of counsel for the selling Principal Stockholder or Principal
Stockholders holding Registrable Securities.
Notwithstanding the foregoing provisions of this Section 1.01, the
holders of Registrable Securities included in any registration statement will
not (until further notice) effect sales thereof after receipt of telegraphic or
written notice from the Company to suspend sales to permit the Company to
correct or update such registration statement or prospectus; the Company shall
correct or update such registration statement or prospectus as soon as possible
in the Company's good faith judgment and give the holders of Registrable
Securities included in such registration statement notice that they may resume
sales thereof, but in no circumstances shall the suspension exceed 90 days as
such lesser period of time as may be permitted pursuant to the last paragraph of
this Section 1.01 (the "Blackout Period"); and at the end of any period during
which the Company is obligated to keep any registration statement current and
effective, the holders of Registrable Securities included in such registration
statement shall discontinue sales of shares pursuant to such registration
statement upon notice from the Company of its intention to remove from
registration the shares covered by such registration statement which remain
unsold, and such holders shall notify the Company of the number of shares
registered which remain unsold promptly after receipt of such notice from the
Company. Notwithstanding the foregoing, the Company shall not be required to
2
<PAGE>
effect a registration under this Section 1.01 if, in the unqualified opinion of
counsel for the Company addressed to the Principal Stockholders, the Principal
Stockholders holding Registrable Securities may sell such Registrable Securities
in the manner proposed without registration under the Securities Act.
Notwithstanding any other provision of this Section 1.01, the
Postponement Period and the Blackout Period may not exceed ninety (90) days in
the aggregate.
SECTION 1.02. REGISTRABLE SECURITIES.
For the purposes of this Agreement, the term "Registrable Securities"
shall mean the Principal Stockholder Shares acquired by a Principal Stockholder
pursuant to the Merger Agreement and any shares of Common Stock issued or
issuable with respect to such Principal Stockholder Shares by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganizations; PROVIDED,
HOWEVER, that as to any particular Registrable Securities, such securities shall
cease to be Registrable Securities: (i) when a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
therewith; (ii) when such securities are eligible for sale pursuant to Rule 144
(or any successor provisions thereto) under the Securities Act, notwithstanding
any volume limitations imposed by such Rule that may delay the sale of such
securities; and (iii) when they shall have otherwise been transferred and
subsequent disposition of them shall not require registration or qualification
under the Securities Act or any similar state law then in force.
SECTION 1.03. FURTHER OBLIGATIONS OF THE COMPANY AND THE PRINCIPAL
STOCKHOLDERS.
(a) Whenever the Company is required to register Registrable
Securities under Section 1.01, it agrees that it shall also do the following:
(i) Use its best efforts to diligently prepare and
file a registration statement with the Securities and Exchange
Commission (the "Commission") within forty-five (45) days after receipt
of a request for registration under Section 1.01 and to prepare and
file such amendments and supplements to said registration statement and
the prospectus used in connection therewith as may be necessary to
cause such registration statement to become effective and thereafter to
keep said registration statement effective and to comply with the
provisions of the Securities Act with respect to the sale of securities
covered by said registration statement until the earlier of (A) the
date which is twelve (12) months from the effective date of such
registration statement and (B) the date on which the Registrable
Securities covered by such registration statement may be sold by the
Principal Stockholders pursuant to Rule 144 (or any successor
provisions thereto) under the Securities Act, notwithstanding any
volume limitations imposed by such Rule that may delay the sale of such
securities;
3
<PAGE>
(ii) Furnish to each selling Principal Stockholder
such copies of each preliminary and final prospectus and such other
documents as such Principal Stockholder may reasonably request to
facilitate the public offering of its Principal Stockholder Shares;
(iii) Use its best efforts to register or qualify the
Principal Stockholder Shares covered by said registration statement
under the blue sky laws of such jurisdictions as any selling Principal
Stockholder may reasonably request, provided that the Company shall not
be required to register in any states which require it to qualify to do
business or subject itself to general service of process;
(iv) File any necessary listing applications or
amendments to the existing applications to cause the shares to be then
listed or quoted on the primary exchange or quotation system on which
the Common Stock is then listed or quoted;
(v) Promptly notify each Principal Stockholder
requesting registration of any request by the Commission for amendments
or supplements to the registration statement or the prospectus related
thereto or for additional information. In addition, the Company shall
promptly notify each such Principal Stockholder of the filing of the
registration statement, any prospectus supplement related thereto or
any post-effective amendment to the registration statement and the
effectiveness of any post-effective amendment; and
(vi) Promptly notify each Principal Stockholder
requesting registration, at any time when a prospectus relating to the
registration statement is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus
included in the registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. In such event, the Company shall prepare and furnish to
each such Principal Stockholder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of Registrable
Securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(b) Whenever under the preceding sections of this Article I, a
Principal Stockholder desires to register Registrable Securities, such Principal
Stockholder agrees that it shall also do the following:
(i) Furnish to the Company such information
regarding such Principal Stockholder and the Registrable Securities to
be registered as the Company
4
<PAGE>
may reasonably request and as may be reasonably required in connection
with any such registration;
(ii) To the extent required by the Securities Act,
deliver or cause delivery of the prospectus contained in the
registration statement to any purchaser of the shares covered by the
registration statement from the Principal Stockholder; and
(iii) Notify the Company of any sale of Registrable
Shares by such Principal Stockholder.
SECTION 1.04. INDEMNIFICATION.
(a) Incident to any registration statement referred to in this
Article I, and subject to applicable law, the Company will indemnify each
Principal Stockholder holding Registrable Securities so registered, and each
person controlling any of them, against all claims, losses, damages and
liabilities, including legal and other expenses reasonably incurred in
investigating or defending against the same, arising out of any untrue statement
of a material fact contained therein, or any omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any violation by the Company of the
Securities Act, any blue sky laws or any rule or regulation thereunder in
connection with such registration; PROVIDED, HOWEVER, that the Company shall not
have any such indemnification obligation with respect to each Principal
Stockholder, and each Principal Stockholder will indemnify the Company, its
directors and officers, the other STOCKHOLDERS and each person controlling,
controlled by or under common control with any of them, against any losses,
claims, damages, expenses or liabilities to which any of them may become subject
insofar as the same may have been caused by (a) an untrue statement or omission
based upon information furnished to the Company by such Principal Stockholder
expressly for use therein, or (b) any prospectus, to the extent that any such
loss, claim, damage or liability of such Principal Stockholder results from an
untrue statement of a material fact contained in, or the omission of a material
fact from, such prospectus which untrue statement or omission was corrected in a
later filed prospectus, if such Principal Stockholder sold shares to the person
alleging such loss, claim, damage or liability without sending or giving, at or
prior to the written confirmation of such sale, a copy of such later filed
prospectus.
Any Indemnified Party that proposes to assert the right to be
indemnified under this Section 1.04 will, promptly after receipt of notice of
commencement of any claim or action against such party in respect of which a
claim is to be made against an indemnifying party under this Section 1.04,
notify the indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify the indemnifying party
will not relieve the Company from any liability that the indemnifying party may
have to any Indemnified Party under the foregoing provisions of this Section
1.04 unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the
5
<PAGE>
indemnifying party. The Indemnified Party will have the right to retain its own
counsel in any such action and all fees, disbursements and other charges
incurred in the investigation, defense and/or settlement of such action shall be
advanced and reimbursed by the Company promptly as they are incurred; PROVIDED,
HOWEVER, that the Indemnified Party shall agree to repay any expenses so
advanced hereunder if it is ultimately determined by a court of competent
jurisdiction that the Indemnified Party to whom such expenses are advanced is
not entitled to be indemnified as a matter of law. The Company shall not settle
any action or claim for which indemnification is sought under this Section 1.04
without the prior written consent of the Indemnified Party, which consent shall
not be unreasonably withhold.
(b) If the indemnification provided for in Section 1.04(a)
above for any reason is held by a court of competent jurisdiction to be
unavailable to the party to be indemnified hereunder (an "Indemnified Party") in
respect of any claims, losses, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such Indemnified Party
thereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such claims, losses, damages or liabilities in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Principal Stockholders and the relative fault of the Company and
the Principal Stockholders in connection with the action or inaction which
resulted in such losses, claims, damages, expenses or liabilities, as well as
any other relevant equitable considerations. The relative fault of the Company
and the Principal Stockholders shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Principal Stockholders and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Principal Stockholders agree that it would not be
just and equitable if contribution pursuant to this Section 1.04(b) were
determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In connection with the registration
of the Company's securities, in no event shall a Principal Stockholder be
required to contribute any amount under this Section 1.04(b) in excess of the
lesser of (i) that proportion of the total of such claims, losses, damages or
liabilities indemnified against equal to the proportion of the total securities
sold under such registration statement which is being sold by such Principal
Stockholder or (ii) the net proceeds received by such Principal Stockholder from
its sale of securities under such registration statement. No person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
(c) The indemnification and contribution provided for in this
Section 1.04 will remain in full force and effect regardless of any
investigation made by or on behalf of Indemnified Parties or any officer,
director, employee, agent or controlling person of
6
<PAGE>
Indemnified Parties and shall survive the completion of any offering of
Registrable Securities pursuant to a registration statement under this Agreement
and shall survive the termination of this Agreement.
SECTION 1.05. RULE 144 REQUIREMENTS.
The Company will use its best efforts to file with the Commission such
information as the Commission may require under Section 13 of the Securities
Exchange Act of 1934, as amended, and the Company shall use its best efforts to
take all action as may be required as a condition to the availability of Rule
144 under the Securities Act (or any successor exemptive rule hereafter in
effect). The Company shall furnish to any Principal Stockholder upon request a
written statement executed by the Company as to the steps it has taken to comply
with the current public information requirement of Rule 144 or such successor
rule.
SECTION 1.06. TRANSFER OF REGISTRATION RIGHTS.
The registration rights of the Principal Stockholders under this
Article I may be transferred to any transferee of Registrable Securities (i) who
is a Principal Stockholder or (ii) who is a member of the transferor's immediate
family or a trust for which the transferor and/or a member or members of the
transferor's immediately family are the sole beneficiaries.
SECTION 1.07. MARKET STAND-OFF.
For as long as any Principal Stockholder owns at least 1% of the
Company's issued and outstanding shares of Common Stock, such Principal
Stockholder hereby agrees not to sell, transfer, hypothecate, or otherwise
dispose of any Common Stock held by him or her during the 180-day period
commencing immediately after the consummation of any underwritten public
offering by the Company. The Principal Stockholders acknowledge and agree that
the Company may issue "stop transfer" instructions to its transfer agent to
enforce this market stand-off provision.
ARTICLE II. MISCELLANEOUS PROVISIONS
SECTION 2.01. LEGEND ON SECURITIES.
The Principal Stockholders acknowledge and agree that the Principal
Stockholder Shares they acquired pursuant to the Merger Agreement will not be
registered under the Securities Act and may not be offered, sold, transferred,
hypothecated or otherwise assigned except pursuant to (a) a registration
statement with respect to such securities which is effective under the
Securities Act, or (b) an available exemption from registration under the
Securities Act.
7
<PAGE>
The Principal Stockholders acknowledge and agree that each certificate
evidencing Principal Stockholder Shares shall bear a legend in substantially the
form provided below (in addition to any required legend under applicable state
securities laws):
THE SHARES REPRESENTED HEREBY HAVE BEEN ACQUIRED BY THE HOLDER
NAMED HEREON FOR HIS OWN ACCOUNT FOR INVESTMENT; AND SUCH
SECURITIES MAY NOT BE PLEDGED, SOLD OR IN ANY OTHER WAY
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF
1933, AS IN EFFECT AT THAT TIME, OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT.
SECTION 2.02. AMENDMENT AND WAIVER.
No failure or delay on the part of any party hereto in exercising any
right, power or remedy hereunder shall operate as a waiver thereof. The remedies
provided for herein are cumulative and are not exclusive of any remedies that
may be available to any party hereto at law or in equity or otherwise. This
Agreement may be amended with the prior written consent of the Company and
Principal Stockholders holding a majority in interest of the Registrable
Securities.
SECTION 2.03. NOTICES.
All notices and other communications provided for herein shall be in
writing and shall be deemed to have been duly given (a) if delivered personally
or (b) if sent by telex or telecopier, registered or certified mail (return
receipt requested) postage prepaid, or by courier guaranteeing next day
delivery, in each case to the party to whom it is directed at the following
addresses (or at such other address for any party as shall be specified by
notice given in accordance with the provisions hereof, provided that notices of
a change of address shall be effective only upon receipt thereof). Notices
delivered personally shall be effective on the day so delivered, notices sent by
registered or certified mail shall be effective three days after mailing,
notices sent by telex shall be effective when answered back, notices sent by
telecopier shall be effective when receipt is acknowledged, and notices sent by
courier guaranteeing next day delivery shall be effective on the earlier of the
second business day after timely delivery to the courier or the day of actual
delivery by the courier:
8
<PAGE>
(i) if to the Company, at the following address:
Webhire, Inc.
91 Hartwell Avenue
Lexington, MA 02421
Attention: Lars Perkins
Tel: (781) 869-5000
Fax: (781) 869-5060
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attention: John J. Egan, III, Esq.
Tel: (617) 570-1514
Fax: (617) 523-1231
(ii) if to a Principal Stockholder, at the following address:
Henry M. Margolis
256 Stearns Road
Marlborough, MA 01752
Tel: (508) 485-5069
Deborah Hamill
27 Ashland Street
Arlington, MA 02174
Tel: (781) 646-5685
Brian K. Kelley
20 Sartell Road
Grafton, MA 01519
Tel: (508) 839-1366
9
<PAGE>
with a copy to:
Lucash, Gesmer & Updegrove, LLP
40 Broad Street
Boston, MA 02109
Attention: Sarah Curtis, Esq.
Tel: (617) 350-6800
Fax: (617) 350-6878
SECTION 2.04. HEADINGS.
The Article and Section headings used or contained in this Agreement
are for convenience of the reference only and shall not affect the construction
of this Agreement.
SECTION 2.05. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which together shall be deemed to constitute
one and the same agreement.
SECTION 2.06. SEVERABILITY.
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
SECTION 2.07. ENTIRE AGREEMENT.
This Agreement, together with the Merger Agreement and other agreements
contemplated hereby and thereby, is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and therein. This Agreement and the Merger Agreement and other agreements
contemplated hereby and thereby (including the exhibits hereto and thereto)
supersede all prior agreements and understandings between the parties with
respect to such subject matter.
10
<PAGE>
SECTION 2.08. TERM OF AGREEMENT.
This Agreement shall be effective as of the date first hereinabove set
forth and shall terminate upon the earliest of (i) the earlier of (A) the date
which is twelve (12) months from the effective date of a registration statement
filed pursuant to Section 1.01 hereof or (B) the date after which all of the
securities registered thereunder have been disposed of in accordance therewith;
(ii) the date after which the Principal Stockholder Shares are eligible for sale
pursuant to Rule 144 (or any successor provisions thereto) under the Securities
Act, notwithstanding any volume limitations imposed by such Rule that may delay
the sale of such Principal Stockholder Shares; and (iii) the date after which
all of the Principal Stockholder Shares have otherwise been transferred and
subsequent disposition of them shall not require registration or qualification
under the Securities Act or any similar state law then in force.
SECTION 2.09. LAW GOVERNING.
This Agreement shall be construed under and governed by the internal
laws of the Commonwealth or Massachusetts without regard to its conflict of laws
provision.
11
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WEBHIRE, INC.
By: /s/ MARTIN J. FAHEY
--------------------------------------
Name: Martin J. Fahey
Title: President
PRINCIPAL STOCKHOLDERS:
/s/ HENRY M. MARGOLIS
------------------------------------------
Henry M. Margolis
/s/ DEBORAH HAMILL
-------------------------------------------
Deborah Hamill
/s/ BRIAN K. KELLEY
-------------------------------------------
Brian K. Kelley
