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EXHIBIT 1.
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated July 10, 2000, among Webhire, Inc., a
Delaware corporation (the "Company"), Korn/Ferry International, a Delaware
corporation ("KFI"), SOFTBANK Capital Partners LP ("Softbank"), GMN Investors
II, L.P. ("Gemini"), Aventine International Fund and Bricoleur Partners II, L.P.
(together "Bricoleur" and, together with Gemini, the "Financial Investors" and,
together with KFI, Softbank and Gemini the "Investors").
1. Purchase and Sale
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(a) Upon the terms and subject to the conditions of this Agreement, the
Investors will severally purchase, and the Company will issue and sell
to the Investors, 6,808,512 newly issued shares of Common Stock, par
value $.01 per share, of the Company (the "Shares"), for a purchase
price of $2.35 per share on the third business day following the date
on which the conditions under Sections 4(c) and 5(c) have been
satisfied, or such other date as the parties may mutually agree (the
"Closing Date"). A list of the Investors and their several purchase
obligations is set forth on Schedule 1(a).
(b) On the Closing Date, the Company shall deliver to the Investors stock
certificates representing the Shares against payment to the Company
by wire transfer of the aggregate purchase price of $16,000,003.40 to
an account designated by the Company.
2. Representations and Covenants of the Company
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The Company represents and warrants to, and covenants and agrees with, the
Investors as follows:
(a) Organization and Authorization. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the
State of Delaware, with full power and authority to carry on its
business as presently conducted. The Company is duly qualified in good
standing to do business in Massachusetts, and there is no other
jurisdiction in which the failure to so qualify would have a material
adverse effect on its business or operations. All actions on the part
of the Company necessary for the authorization, execution and delivery
of this Agreement and the other agreements and instruments
contemplated hereby have been taken, and this Agreement constitutes
and the other agreements and instruments will constitute valid and
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or offering creditors' rights and to general
equity principles.
(b) Capitalization. As of the date hereof, the Company has an authorized
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capital stock consisting of 30,000,000 shares of Common Stock and
5,000,000 shares of preferred stock, par value $.01 per share. As of
July 5, 2000, there were 14,613,622 shares of Common Stock, options
for 2,388,150 shares of Common Stock, warrants for 199,218 shares of
Common Stock and no shares of preferred stock outstanding. Except as
set forth above or on Schedule 2(b), there are no options, warrants or
commitments of any kind relating to the capital stock of the Company,
including any preemptive or other rights to purchase the Shares, other
than the preemptive rights previously granted to Softbank and stock
options issued in the ordinary course of business.
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(c) The Shares. When issued and delivered in accordance with the terms of
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this Agreement, the Shares will be duly and validly authorized and
issued, fully paid and non-assessable.
(d) Exchange Act Reports. The Company's reports on Form 10-K for the
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fiscal year ended September 30, 1999, Forms 10-Q for the quarters
ended December 31, 1999 and March 31, 2000, and proxy statement for
the stockholders meeting on March 15, 2000, complied with the
requirements of the Securities Exchange Act of 1934, as amended, and
the rules promulgated thereunder, and did not contain any untrue
statement of a material fact, or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(e) Financial Statements. The audited consolidated balance sheets of the
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Company as of September 30, 1998 and 1999, and the unaudited
consolidated balance sheet as of March 31, 2000, and the related
statements of earnings for each of the fiscal periods then ended,
fairly present the financial position of the Company as of such dates
and the results of its operations for the periods then ended in
accordance with U.S. generally accepted accounting principles applied
on a consistent basis, subject in the case of the interim financial
statements to normal year-end adjustments and the absence of
footnotes. Since March 31, 2000 and other than reductions in the
Company's cash balances as a result of operating losses, there has not
been any material adverse change in the financial position or the
earnings or operations of the Company that has not been publicly
disclosed or disclosed to the Investors.
(f) Intellectual Property. To the best of the Company's knowledge, the
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Company has the valid and enforceable right to use each of the
material patents, trademarks, trade names and copyrights used by the
Company in the conduct of its business and such use in the conduct of
its business does not conflict with valid rights of others.
(g) Compliance. To the best of the Company's knowledge, the Company (i)
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has complied in all material respects with all material federal,
state, local and foreign laws, regulations and orders applicable to
its business, and (ii) has obtained all federal, state, local and
foreign governmental licenses, registrations and permits necessary for
the conduct of its business, and such licenses, registrations and
permits are in full force and effect.
(h) No Conflict. The execution and delivery of this Agreement and the
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performance of the Company's obligations hereunder will not (i)
violate or be in conflict with provisions of any law, rule or
regulation, any order, judgment or award of any court or other agency
of government or arbitrator, or any provision of the Certificate of
Incorporation or By-Laws of the Company, (ii) violate, be in conflict
with, result in a breach of, or constitute (with or without notice or
lapse of time or both) a default under any indenture, lease or other
material agreement or instrument to which the Company is a party or by
which it or any of its properties is bound, or (iii) result in the
creation or imposition of any material lien, charge or encumbrance
upon any of its properties or assets.
(i) No Consents. Assuming the accuracy of the Investors' representations
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and warranties in Section 3(d), no consent, approval or authorization
of or declaration or filing with any governmental authority or other
person or entity on the part of the Company is required in connection
with the execution or delivery of this Agreement or the consummation
of the transactions contemplated hereby, except for obtaining
shareholder approval.
(j) Litigation. Except as previously disclosed to the Investors, there is
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no litigation or proceeding pending or, to the best of the Company's
knowledge, threatened against the Company or its properties or
business, which is
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likely to have a material adverse effect on the financial condition,
business or operations of the Company, or which seeks to prevent the
consummation of the transactions contemplated by this Agreement.
(k) Finders. There is no investment banker, broker, finder, consultant or
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other intermediary that has been retained by, or is authorized to act
on behalf of, the Company who is entitled to any fee or commission
upon consummation of the transactions contemplated by this Agreement
other than fees which may be due to U.S. Bancorp Piper Jaffray Inc.,
which will be paid by the Company.
(l) Listing. The Shares to be issued to the Investors pursuant to this
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Agreement will be approved for listing on the Nasdaq National Market
on or prior to the Closing Date.
(m) Proxy Statement. The information contained in the proxy statement
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delivered to shareholders of the Company pursuant to Section 8 will
comply with the requirements of the Securities Exchange Act of 1934,
as amended, and the rules promulgated thereunder, and will not contain
any untrue statement of a material fact, or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading.
3. Representations of the Investors
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Each of the Investors represents and warrants to the Company as follows:
(a) Organization. The Investor is a corporation or partnership duly
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organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation, with full power and
authority to enter into and perform this Agreement.
(b) No Consents. No consent, approval or authorization of or declaration
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or filing with any governmental authority or other person or entity on
the part of the Investor is required in connection with the execution
or delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(c) Finders. There is no investment banker, broker, finder, consultant or
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other intermediary that has been retained by, or is authorized to act
on behalf of, the Investor who is entitled to any fee or commission
upon consummation of the transactions contemplated by this Agreement.
Other than the fees which may be due to Credit Suisse First Boston,
which will be paid by KFI.
(d) Investment. The Investor is an "accredited investor" within the
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meaning of Regulation D under the Securities Act of 1933 (the "1933
Act"), and is acquiring the Shares for its own account for investment
and not with a view to resale or distribution.
(e) Access to Information. The Investor has received all the information
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it requested from the Company in determining whether to purchase the
Shares. It has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the terms of
the transactions contemplated by the Agreement and the business,
properties, prospects and final condition of the Company.
4. Conditions to Obligations of the Investors
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The obligations of the Investors to consummate the transactions
contemplated by this Agreement are subject to the satisfaction at or prior to
the Closing Date of the following conditions (but not (c) or (d) in the case of
Section 6):
(a) No preliminary or permanent injunction or other binding order, decree
or ruling issued by a court or governmental agency shall be in effect
which
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shall have the effect of preventing the consummation of the
transactions contemplated by this Agreement.
(b) All representations and warranties of the Company contained in this
Agreement shall be true in all material respects at and as of the
Closing Date as though made at such time, and the Company shall have
performed and complied in all material respects with all covenants and
conditions required by this Agreement to be performed or complied with
by it prior to or on the Closing Date.
(c) The Company shall have obtained shareholder approval of the issuance
of the Shares pursuant to this Agreement.
(d) The Investors shall have received from McDermott, Will & Emery,
counsel to the Company, an opinion, dated as of the Closing Date,
addressed to the Investors in the form attached hereto as Exhibit 4.
(e) All corporate and other proceedings required to carry out the
transactions contemplated by this Agreement, and all instruments and
other documents relating to such transactions, shall be reasonably
satisfactory in form and substance to Sullivan & Cromwell, counsel to
KFI, and the Investors shall have been furnished with such instruments
and documents as such counsel shall have reasonably requested.
(f) In addition, the obligation of KFI to convert its bridge promissory
note and otherwise acquire shares pursuant to this Agreement shall be
subject to the Company receiving at least $7 million from the issuance
of shares to the other Investors pursuant to the Agreement.
5. Conditions to Obligations of the Company
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The obligations of the Company to consummate the transactions contemplated
by this Agreement are subject to the satisfaction at or prior to the Closing
Date of the following conditions:
(a) No preliminary or permanent injunction or other binding order, decree
or ruling issued by a court or governmental agency shall be in effect
which shall have the effect of preventing the consummation of the
transactions contemplated by this Agreement.
(b) All representations and warranties of the Investors contained in this
Agreement shall be true in all material respects at and as of the
Closing Date as though made at such time, and the Investors shall have
performed and complied in all material respects with all covenants and
conditions required by this Agreement to be performed or complied with
by them prior to or on the Closing Date.
(c) The Company shall have obtained shareholder approval of the issuance
of the Shares pursuant to this Agreement.
6. Bridge Loan
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Within five (5) business days following execution of this Agreement and
thereafter until the Closing Date, KFI and Softbank shall severally lend to the
Company, pro rata based on the number of Shares set forth opposite their names
on Schedule 1(a), up to an aggregate of $6 million, as required by the Company,
upon the terms and conditions set forth in the form bridge promissory note
attached hereto as Exhibit 6.
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7. Cross-Promotion Agreement
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The Company and KFI shall enter into a Cross-Promotion Agreement prior to
the Closing Date that will contain the following terms:
(a) KFI will be the exclusive top-tier executive search firm to whom the
Company refers clients for search services.
(b) KFI and the Company will commit to cross-promotional activities for
each other's services.
(c) KFI and the Company will explore opportunities to jointly develop and
cross-license technologies.
The Company and KFI agree to negotiate such agreement in good faith
following the execution of this Agreement.
8. Shareholder Approval
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The Company shall hold a shareholder meeting to approve the issuance of the
Shares pursuant to this Agreement as promptly as possible following the
execution of this Agreement and use its best efforts to solicit such approval.
The Company shall also use its best efforts to take all other actions and obtain
all other consents or waivers necessary to enable it to consummate the
transactions contemplated by this Agreement as promptly as possible following
the execution of this Agreement, including ensuring that no state takeover law
or anti-takeover provision of the Company is applicable to the transactions
contemplated by this Agreement.
In that regard, the Company shall prepare and file with the Securities
and Exchange Commission (the "SEC") and all other appropriate governmental
agencies a proxy statement and all other documents or amendments thereto
required or necessary to solicit shareholder approval of the issuance of the
Shares pursuant to this Agreement. The Company shall provide the Investors with
an opportunity to review and comment on such documents and amendments and
correspondence to and from the SEC.
The Company shall recommend to its shareholders that they approve the
issuance of the Shares pursuant to this Agreement.
From the date of this Agreement until the earlier of the issuance of
the Shares to the Investors pursuant to this Agreement or the termination of
this Agreement, the Company shall not solicit or negotiate any proposal,
disclosure or communication to the Company of any takeover proposal which would
preclude the consummation of the transactions contemplated hereby or any
alternative transaction to the transactions contemplated by this Agreement. The
Company shall promptly notify the Investors of any such actions taken by third
parties.
Softbank agrees to vote all its shares of Common Stock of the Company in
favor of the transactions contemplated by this Agreement.
The obligations of the Company and Softbank set forth in this Section 8
shall not be affected by the commencement, public proposal, public disclosure or
communication to the Company by any third party of any takeover proposal or any
alternative transaction to the transactions contemplated by this Agreement.
9. Board of Directors
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KFI shall be entitled to appoint one member of the Company's Board of
Directors on the Closing Date, which shall, as of the Closing Date, consist of
six or seven directors including the director approved by KFI. For so long as
it owns at least 5% of the Company's outstanding Common Stock, KFI shall be
entitled to nominate one director each time the class of directors in which its
representative serves is subject to election. The KFI director shall have
access to any information available to any other director, unless counsel for
the Company reasonably determines that such access is likely to waive the
Company's attorney-client privilege or result in a breach of the Board's
fiduciary duties. The Company shall reimburse all reasonable
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expenses incurred by the KFI director relating to attendance at Board and Board
committee meetings and other activities on behalf of the Company.
10. Right of First Negotiation
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So long as KFI owns at least 5% of the outstanding Common Stock, KFI will
be entitled to notice (which shall set forth all material information) and have
a right of first negotiation for a period of 10 business days following such
notice in the event that the Company proposes to (i) sell equity securities of
the Company in, or agree to, a transaction that would result in a person (other
than Softbank) owning 20% or more of the Company's fully diluted share capital
after the issue, (ii) sell all or substantially all of its assets to a third
party, or (iii) merge with a third party if the Company will not be the
surviving person and the holders of the Company's outstanding voting securities
immediately prior to such merger hold less than a majority of the outstanding
voting securities of the surviving entity.
In the event that the Company receives an unsolicited offer for a
transaction subject to this Section 10 and the Company determines to consider
that offer or other similar transactions, the Company shall send KFI the written
notice specified above promptly after having made its determination to consider
a transaction, and during the negotiation period shall (i) negotiate with KFI in
good faith regarding such unsolicited offer or any offer made by KFI with
respect to a similar transaction and (ii) shall not negotiate or enter into any
agreement with, provide any information to or solicit any offer from any third
party other than KFI. In addition, the Company shall be free to accept or
reject any offers made by KFI during the negotiation period in the sole
discretion of its Board of Directors or a committee thereof. Any KFI
representative on the Company's Board of Directors shall be recused from any
discussions or decisions regarding the Company's negotiations with KFI
hereunder. In furtherance of the foregoing, the Company shall not be deemed to
be in breach of this Section 10 if it subsequently accepts an offer which is
equivalent to, or less favorable to the Company and its shareholders than, an
offer made by KFI during the negotiation period.
11. Transfer
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(a) Transfer Restrictions. The Investors will not make any disposition of
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any of the Shares unless and until the transferee has agreed in writing
for the benefit of the Company to be bound by this Section 11(a),and:
(i) (There is then in effect a registration statement under the 1933
Act hereof covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(ii) ((A) The Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition,
and (B) if reasonably requested by the Company, the Investor shall have
furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company that such disposition will not require
registration under the 1933 Act;
provided, however, the conditions in clause (i) and (ii) of this Section (a)
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shall not apply to any transfer by the Investor to any entity that controls, is
controlled by, or under common control with, the Investor and is not an
operating company.
(b) Legend. Each Investor understands that the certificates evidencing the
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Shares may bear the following legend:
"These securities have not been registered under the Securities Act of
1933, as amended. Except as otherwise provided in the Stock Purchase
Agreement, dated July 10, 2000, they may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in
effect with respect to the securities under such Act or an opinion of
counsel satisfactory to the Company that such registration is not
required."
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12. Registration Rights
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(a) Demand Registration. Commencing one year after the Closing Date, the
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holders (other than the Financial Investors) of at least 30% of the
Shares held by Investors other than the Financial Investors may make
up to two requests, in writing, that the Company use its best efforts
to effect, as expeditiously as possible, the registration of any or
all of the Shares then held by such Investors on a registration
statement on Form S-3 (or any successor form); provided, however, that
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the Company shall only be obligated to effect two such registrations
under this Section 12(a).
(b) Financial Investor Registration. The Company shall:
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(i) subject to receipt of necessary information from the
Financial Investors, prepare and file with the Securities and Exchange
Commission (the "SEC"), as soon as practicable, but in no event later
than thirty (30) days after the Closing Date, a registration statement
on Form S-3 (the "Financial Investor Registration Statement") to
enable the resale of the Shares purchased by the Financial Investors
from time to time through the automated quotation system of the Nasdaq
Stock Market or in privately-negotiated transactions;
(ii) use its reasonable best efforts, subject to receipt of
necessary information from the Financial Investors, to cause the
Financial Investor Registration Statement to become effective as soon
as practicable, but in no event later than ninety (90) days after the
Financial Investor Registration Statement is filed by the Company; and
(iii) use its reasonable efforts to prepare and file with the SEC
such amendments and supplements to the Financial Investor Registration
Statement and the prospectus used in connection therewith as may be
necessary to keep the Financial Investor Registration Statement
current and effective for a period not exceeding with respect to each
Financial Investor's Shares purchased hereunder, the earlier of (i)
the second anniversary of the Closing Date, (ii) the date on which
such Financial Investor may sell all Shares then held by such
Financial Investor without restriction by the volume limitations of
Rule 144(e) of the Securities Act or (iii) such time as all Shares
purchased by such Financial Investors under this Agreement have been
sold pursuant to a registration statement or otherwise transferred.
(c) The Company may postpone for up to 180 days the filing or the
effectiveness of a registration statement for a registration pursuant
to Section 12(a) or Section 12(b) if the Company's board of directors
determines that such registration could reasonably be expected to have
a material adverse effect on any proposal or plan by the Company or
any of its subsidiaries to engage in any acquisition of assets (other
than in the ordinary course of business) or any merger, consolidation,
tender offer, reorganization or similar transaction. The Company shall
not be obligated to effect any registration under Section 12(a) within
90 days after the completion of any underwritten public offering of
its stock.
(d) "Piggy-Back" Registration. If the Company prepares to file a
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registration statement under the 1933 Act in connection with the
public offering of the Company's common equity securities (including
any registration for other shareholders) the Company shall so notify
the Investors (other than the Financial Investors) and such Investors
may have any or all of its Shares so included in such registration.
Notwithstanding any other provision of this Section 12(d), if the
representative of the underwriters managing such offering advises the
Company in writing that the number of shares of Common Stock proposed
to be sold in any such offering or sale is greater than the
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number of shares which the representative believes feasible to sell at
that time at the price and upon the terms approved by the Company,
there shall be included in such registration and underwriting (i)
first, the number of securities proposed to be sold by the Company and
(ii) second, the number of shares to be included in the registration
and underwriting by selling stockholders on a pro rata basis based
upon the number of shares that each of such stockholders desires to
register.
(e) Expenses of Registration. Except for underwriting discounts and
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commissions applicable to the Investors' Shares, the Company shall be
responsible for all expenses in connection with any registration of
Shares hereunder (other than underwriting discounts and commissions),
including, without limitation, all registration, filing,
qualification, printers and accounting expenses, and fees and
disbursements of both counsel for the Company and counsel for the
Investors.
(f) Indemnification. With respect to any registration pursuant to this
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Section 12, the Company will provide customary indemnification for the
Investors and any underwriter of Shares sold by the Investors (and any
of their directors, officers and controlling persons) and the
Investor's right to participate in any underwritten offering will be
subject to its execution of a customary underwriting agreement.
(g) Assignment of Registration Rights. The rights pursuant to this
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Section 12 may be assigned by an Investor together with any transfer
of Shares, provided the transfer complies with the applicable terms of
this Agreement. As used in this Section 12, the term Investor includes
any such assignee.
(h) Restrictions on Sales. During the period beginning 10 days prior to
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and ending 90 days after the effective date of a registration
statement of the Company filed under the 1933 Act and relating to an
underwritten offering by the Company, KFI shall not, to the extent
requested by the Company and any managing underwriter of such
offering, directly or indirectly, sell, offer or contract to sell
(including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to its
affiliates or pursuant to gifts to donees who agree to be similarly
bound) and Shares at any time during such period except Shares covered
by such registration statement.
13. Preemptive Rights
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For so long as KFI holds 5% or more of the Company's outstanding common
stock, the Company will give KFI notice each time the Company proposes to offer
any shares of, or securities convertible into or exercisable for any shares of,
any class of its capital stock (other than in a transaction exempt from this
Section 13 in the following paragraph). Within 30 days of receiving such
notice, KFI may agree to purchase or obtain, at the same price and on the same
terms as such offer, up to that portion of such securities which equals the
proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion and exercise of all convertible or exercisable
securities then held, by KFI bears to the total number of shares of Common Stock
then outstanding (assuming full conversion and exercise of all convertible or
exercisable securities then outstanding).
The preemptive rights in this Section 13 shall not be applicable (i) to the
issuance or sale of Common Stock (or options therefor) to employees, consultants
and directors, pursuant to a stock option or grant plan or similar benefit
program or arrangement approved by the Board of Directors, (ii) to the issuance
of securities in connection with a bona fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale or exchange of
stock or otherwise, (iii) to the issuance of securities upon the exercise of
warrants or options or pursuant to the conversion or exercise of convertible
securities outstanding on the date thereof, (iv) as a result of any
reclassification, stock split or stock dividend on Shares outstanding on the
date thereof, (v) to the issuance of securities to a
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strategic partner other than a KFI Competitor (as defined below) or Jobtrak
Corporation, (vi) to a lender in connection with credit arrangements, financing
or similar transactions or (vii) in connection with an underwritten offering.
For purposes of this Agreement, KFI Competitor shall mean any of: Egon Zehnder,
Heidrick & Struggles, TMP Worldwide, Russell Reynolds Assoc. and Spencer Stuart
and any other top tier firm that is similarly a significant competitor of KFI in
retained executive search services that is added to such list by KFI in writing
and is consented to by the Company, which consent shall not be unreasonably
withheld.
14. Standstill Agreement
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KFI and its affiliates shall not, directly or indirectly, (a) acquire
beneficial ownership of any Common Stock of the Company or securities
convertible into or exchangeable for Common Stock (except, in any case, by way
of stock dividends or other distributions or offerings made available to holders
generally), or (b) authorize or make a tender, exchange or other offer that
would result in such an acquisition, if the effect of such acquisition would be
to increase KFI's ownership to a level above 30% of the outstanding Common Stock
(other than as a result of the exercise of preemptive rights under Section 13).
KFI further agrees that, except by virtue of its representation on the Board of
Directors of the Company: (a) it will not act, alone or in concert with others,
to seek to affect or influence the Board of Directors or the control of the
management of the Company or the businesses, operations, affairs, financial
matters or policies of the Company, (b) it will not initiate or propose any
stockholder proposal or action or make, or in any way participate in or
encourage, directly or indirectly, any "solicitation" of "proxies" to vote or
written consents, or seek to influence any person or entity with respect to the
voting of or consenting with respect any of the Company's voting securities, or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Securities Exchange Act of 1934, as in effect on the
date hereof) in any election contest with respect to the election or removal of
any of the Company's directors or in opposition to the recommendation of the
majority of the directors of the Company with respect to any other matter; or
(c) join a partnership, limited partnership, syndicate or other group, or
otherwise become a "person" within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, with any person other than an affiliate of KFI
for the purpose of acquiring, holding, voting or disposing of the Company's
voting securities.
The provisions of this Section 14 shall not limit KFI's ability to
negotiate with the Company pursuant to Section 10. In addition, in the event
that the Board of Directors of the Company shall approve or recommend a
transaction described in clauses (i) through (iii) of Section 10 with a party
other than KFI, then KFI shall be permitted to make and consummate a competing
transaction proposal to or with the Company, its Board of Directors or its
shareholders; provided, however, that the Company shall have no obligations to
KFI to accept or consider such proposal.
15. Confidentiality
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Each Investor will treat and hold as confidential any and all information
relating to the business and affairs of the Company furnished to it pursuant to
this Agreement and not generally known or available to the public (other than as
a result of breach of this Agreement) and shall refrain from using any of such
information or trading in the Company's securities on the basis thereof except
in connection with this Agreement or as compelled by judicial or administrative
process or by requirement of law. Each Investor acknowledges that the Company
would be irreparably damaged if such confidential information were disclosed to
or utilized by or on behalf of persons other than the Investors, the Company or
their respective affiliates.
16. Miscellaneous
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(a) Fees and Expenses. The Company shall pay its own expenses incurred in
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connection with its execution, delivery and performance of this
Agreement, including the reasonable fees and expenses of KFI's
counsel.
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(b) Survival and Termination. All representations and warranties made
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herein shall survive for two years after the Closing Date and shall
continue in full force and effect after delivery of and payment for
the Shares. All covenants and agreements herein shall survive until
the earlier of five years after the Closing Date or when KFI ceases to
hold at least 5% of the Company's outstanding Common Stock; provided,
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however, the covenants in Sections 8, 10, 13 and 14 shall terminate
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upon the sale of all or substantially all of the assets or outstanding
capital stock of the Company or any merger or reorganization including
the Company and as a result of which the holders of the Company's
outstanding Common Stock immediately prior to such transaction do not
hold at least a majority of the outstanding voting securities in the
entity surviving such transaction.
(c) Modification and Waiver. No amendment or modification of the terms or
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provisions of this Agreement shall be binding unless the same shall be
in writing and duly executed by the parties hereto. No waiver of any
of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof. No delay on the
part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof.
(d) Entire Agreement. This Agreement sets forth the entire understanding
----------------
of the parties with respect to the subject matter hereof. Any previous
agreement or understandings between the parties regarding such subject
matter are merged into and superseded by this Agreement; provided,
however, that this Agreement shall not be deemed to supercede the
prior purchase agreement between the Company and Softbank, which
remains in effect.
(e) Severability. In case any provision in this Agreement shall be
------------
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
(f) Notices. All notices, consents or other communications hereunder
-------
shall be in writing, and shall be deemed to have been duly given and
delivered when delivered by hand, or when mailed by registered or
certified mail, return receipt requested, postage prepaid, or when
received via telecopy or other electronic transmission, in all cases
addressed to the party for whom intended at its address set forth
below:
If to KFI:
Korn/Ferry International
1800 Century Park East
Los Angeles, CA 90067
Attention: Chief Financial Officer
Telephone: (310) 226-2613
Facsimile: (310) 553-8640
with a copy to:
Sullivan & Cromwell
1888 Century Park East, Suite 2100
Los Angeles, CA 90067
Attention: Steven B. Stokdyk, Esq.
Telephone: (310) 712-6624
Facsimile: (310) 712-8800
10
<PAGE>
If to Softbank:
1188 Centre Street
Newton, MA 02459
Attention: Charles R. Lax
Telephone: (617) 928-9300
Facsimile: (617) 928-9301
If to Gemini:
c/o Gemini Investors LLC
20 William Street
Wellesley, MA 02481
Attention: Jeff Newton
Telephone: (781) 237-7001
Facsimile: (781) 237-7233
If to Bricoleur:
8910 University Center Lane #570
San Diego, CA 92122
Attention: Dan Wimsatt
Telephone: (858) 597-1708
Facsimile: (858) 597-9843
If to the Company:
Webhire, Inc.
91 Hartwell Avenue
Lexington, MA 02421
Attention: President
Telephone: (781) 869-5000
Facsimile: (781) 869-5060
with a copy to:
McDermott, Will & Emery
28 State Street
Boston, MA 02109
Attention: John J. Egan, P.C.
Telephone: (617) 535-4040
Facsimile: (617) 535-3800
or such other address as either party shall have designated by notice in writing
to the other party given in the manner provided by this Section.
(g) Publicity. Until six months following the Closing Date, the
---------
Investors' and the Company shall consult with each other before
issuing any press release or otherwise making any public statement
with respect to the transactions contemplated hereby, and shall not
issue any such press release or make any such public statement prior
to approval by the other party, which will not be unreasonably
withheld except as may be required by law.
(h) No Implied Rights. Nothing herein express or implied, is intended to
-----------------
or shall be construed to confer upon or give to any person, firm,
corporation or legal entity, other than the parties hereto and their
affiliates, any interests, rights, remedies or other benefits with
respect to or in
11
<PAGE>
connection with any agreement or provision contained herein or
contemplated hereby.
(i) Assignment. This Agreement may not be assigned by either party
----------
without the prior written consent of the other party except by KFI to
an affiliate provided the assignee agrees to be bound by the terms of
this Agreement as though named as an original party hereto.
(j) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York.
(k) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same instrument.
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
WEBHIRE, INC.
By: /s/ Martin J. Fahey
---------------------------------------
KORN/FERRY INTERNATIONAL
By: /s/ Elizabeth S.C.S. Murray
---------------------------------------
SOFTBANK CAPITAL PARTNERS LP
By: /s/ Charles R. Lax
---------------------------------------
GMN INVESTORS II, L.P.
By: /s/ James J. Goodman
---------------------------------------
AVENTINE INTERNATIONAL FUND
By: /s/ Daniel P. Wimsatt
---------------------------------------
BRICOLEUR PARTNERS II, L.P
By: /s/ Daniel P. Wimsatt
---------------------------------------
13
<PAGE>
Schedule 1(a)
-------------
<TABLE>
<CAPTION>
Purchase Price Shares
-------------- ---------
<S> <C> <C>
Korn/Ferry International $ 8,000,001.60 3,404,256
SOFTBANK Capital
Partners LP 4,000,000.80 1,702,128
GMN Investors II, L.P. 2,000,000.40 851,064
Aventine International Fund 1,011,675.20 430,500
Bricoleur Partners II, L.P. 988,325.40 420,564
-------------- ---------
Total $16,000,003.40 6,808,512
</TABLE>
14
<PAGE>
Schedule 2(b)
-------------
Pursuant to the terms of the Yahoo! Inc. and Webhire, Inc. Services
Agreement, dated as of June 3, 1999, by and between Yahoo! Inc. ("Yahoo") and
the Company (the "Yahoo Agreement"), in the event the Yahoo Agreement is renewed
for an additional year, the Company is obligated to issue to Yahoo a warrant to
purchase an aggregate of up to one percent (1%) of the total number of
outstanding shares of the Company's Common Stock as of June 3, 2000 at an
exercise price equal to the average closing price of the Company's Common Stock
for the thirty (30) trading days prior to June 3, 2000. The Company has served
Yahoo with notice of its intention to renew the Yahoo Agreement; however, the
Company and Yahoo are presently negotiating revisions to the Yahoo Agreement
which, if implemented, will eliminate the requirement of issuing an additional
warrant to Yahoo.
15
