FORM OF AMENDED STOCK REPURCHASE AGREEMENT
Published on September 4, 1998
AMENDED AND RESTATED
STOCK REPURCHASE AGREEMENT
THIS AMENDED AND RESTATED STOCK REPURCHASE AGREEMENT (the "Agreement")
is entered into as of ________________ by and between Korn/Ferry international,
a California corporation (the "Company"), and _________________________, an
individual (the "Shareholder"), and is an amendment and restatement of the
previous Stock Repurchase Agreement between the Company and the Shareholder (the
"Prior Agreement") [MODIFY AS APPROPRIATE IF MORE THAN ONE PRIOR AGREEMENT.].
A. The Company is a corporation duly organized and existing under
the laws of the State of California.
B. [MODIFY AS APPROPRIATE FOR EACH INDIVIDUAL.] In 1991, the Company
adopted the Executive Participation Program (the "Equity Plan"), which provides
for the sale of shares of Company common stock to certain officers of the
C. Pursuant to the Equity Plan the Shareholder subscribed to
purchase shares of Company Common Stock under the Executive Participation
Program Stock Subscription Agreement (Basic Equity Account) between Company and
Shareholder (the "Subscription Agreement"), which required that Shareholder
enter into the Prior Agreement.
D. In August 1998, the Company's shareholders approved the initial
public offering of the Company (the "IPO"), and authorized the Company to offer
to amend and restate the Prior Agreement, subject to the consummation of the
E. The Shareholder and the Company now wish to enter into this
Agreement as an amendment and restatement of the Prior Agreement. This
Agreement shall become effective if and only if the is consummated on or before
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth below, the parties hereto agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, the following
"Book Value" means the book value of a Share, as determined in
accordance with generally accepted accounting principals applied in accordance
with the usual accounting practices of the Company.
"Equity Committee" shall mean a committee appointed by the Board
of Directors of the Company. The Equity Committee shall be comprised of three
members of the board of directors of the Company, at least two of which shall
not be officers or employees of the Company.
"Fiscal Year" means the fiscal year of the Company, which is
currently specified as the period beginning each May 1 and ending each April 30,
or any other period specified by the Board of Directors of the Company as the
fiscal year of the Company.
"401(k) Plan" means the Korn/Ferry International Employee Tax
Deferred Savings Plan.
"Shares" means the shares of Company Common Stock currently owned
by the Shareholder from any source or which may be acquired by Shareholder in
the future under the Equity Plan, or distributed to the Shareholder under the
401(k) Plan. Shares acquired on the public market following the IPO shall not be
considered as "Shares".
"Value" means, for purposes of determining the price at which a
Share will be sold or purchased by the Company pursuant to Section 7 of this
Agreement, (a) the Book Value of such Share as of the end of the Fiscal Year
ending April 30, 1998, plus interest at the rate of eight and one-half percent
(8.5%) per annum, (b) such other value or formula for determining value as may
be specified from time to time after the date hereof in a resolution adopted by
the Board of Directors of the Company for purposes of this Agreement.
2. COMPLIANCE WITH AGREEMENT. Except as expressly set forth herein,
the Shareholder shall not sell, transfer, hypothecate, pledge or otherwise
dispose of the Shares or any interest therein held by Shareholder (a "Transfer")
without the prior written consent of the Company. Any purported Transfer not in
compliance with the terms and conditions of this Agreement shall be void and of
no force and effect. If the Shares are Transferred, in whole or part,
voluntarily or involuntarily, by operation of law or otherwise, by reason of
insolvency or bankruptcy of the Shareholder, or otherwise in violation of the
provisions of this Agreement, the recipient of any of the Shares shall not be
registered on the books of the Company and shall not be recognized as the holder
of the Shares by the Company and shall not acquire any voting, dividend or other
rights in respect thereof.
3. INVESTMENT INTENT. The Shareholder hereby represents and
warrants to the Company that the Shareholder's purchase of the Shares has been
made for his or her own account, for investment purposes only and not with a
view to distribution or resale of the Shares. The sale of the Shares has not
been registered under the Securities Act of 1933, as amended, or the securities
laws of any state. Except as expressly set forth herein, the Shareholder may not
sell the Shares unless they have
been so registered or unless, in the opinion of counsel satisfactory to the
Company, such registration is not required.
4. RESTRICTION ON CERTIFICATES. The Shareholder understands and
agrees that the certificate(s) issued to him or her representing the Shares:
(i) Shall contain the following legend:
"TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE MAY REQUIRE
REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND THIS
CERTIFICATE MAY NOT BE TRANSFERRED WITHOUT EVIDENCE OF SUCH REGISTRATION OR
OF AN EXEMPTION FROM THE REGISTRATION REQUIREMENT OF THE ACT. THE RIGHT TO
SELL, TRANSFER OR OTHERWISE DISPOSE OF OR PLEDGE THE SHARES REPRESENTED BY
THIS CERTIFICATE IS PROHIBITED BY THE TERMS OF A RESTATED AND AMENDED STOCK
REPURCHASE AGREEMENT. A COPY OF SUCH AGREEMENT IS ON FILE AT THE COMPANY'S
PRINCIPAL PLACE OF BUSINESS."
(ii) May contain additional legends as required by state
5. PERMITTED SALES AT AND FOLLOWING IPO. Notwithstanding the
restrictions on the sale of Shares contained herein, the Shareholder may sell
Shares according to the following schedule:
DATE PERMISSIBLE SALES
Consummation of the Ten percent (10%) of the
Company's Initial Shareholder's Shares
Second anniversary An additional twenty percent
of IPO Date (20%) of the Shareholder's Shares
Third Anniversary of An additional twenty percent
IPO Date (20%) of the Shareholder's Shares
Fourth Anniversary Any remaining Shares
of IPO Date
The foregoing schedule of permissible sales shall be applied as follows:
(a) The percentages shall be applied with respect to the sum of
the Shareholder's current Shares as of the time of a sale, plus any Shares
previously sold. As an example by way of illustration only, and not reflective
of the Shareholder's actual number of Shares, assume the Shareholder had 100
Shares on the IPO Date, and that an additional 50 Shares were beneficially owned
by the Shareholder under the 401(k) Plan. The Shareholder would have the right,
as of the IPO Date, to sell ten percent (10 shares) of the Shares held by the
Shareholder other than the Shares beneficially owned under the 401(k) Plan.
(Sale of Shares beneficially owned under the 401(k) Plan are governed by the
provisions of the 401(k) Plan rather than this Agreement.) If the Shareholder
sold the permitted ten Shares on the IPO Date, and, before the second
anniversary of the IPO Date, received a distribution from the 401(k) Plan of the
Shareholder's fifty Shares, the Shareholder would have 140 Shares on the second
anniversary of the IPO Date. The Shareholder would be permitted to sell up to 35
shares on the second anniversary of the IPO Date (the sum of the Shares then
held (140), plus the shares previously sold (10), times 30%, less the shares
previously sold, equals 35 shares).
(b) Shares sold on the IPO Date shall be sold pursuant to the
procedures established by the Company. No Shares may be sold in the period from
the day after the IPO Date to the second anniversary of the IPO Date. Fifty
percent (50%) of the proceeds of the sale of the Shareholder's shares on the IPO
Date (or, if less, the outstanding balance of the Shareholder's notes under the
Subscription Agreement) shall be used by the Company to reduce the balance of
the Shareholder's notes under the Subscription Agreement.
(c) Any Company Common Stock beneficially owned by the
Shareholder in the 401(k) Plan shall not count towards determining the Shares
which may be sold unless and until such Shares are distributed to the
Shareholder from the 401(k) Plan.
(d) The foregoing schedule shall cease to apply to the
Shareholder's Shares and the Shares may be sold without restriction in the event
of the Shareholder's death.
6. POSSESSION OF CERTIFICATES. The Company shall hold the
certificates evidencing the Shares as custodian to protect its interests
hereunder until the Shareholder has the right to sell the Shares, as set forth
in Section 5 above. In furtherance thereof, Shareholder has executed and
delivered (or shall herewith execute and deliver) to the Company assignment(s)
in blank, in the form of Exhibit A to the Prior Agreement, for the transfer of
such certificates. The Company has delivered to Shareholder a receipt for such
Shares in the form of Exhibit B to the Prior Agreement.
Upon the request of Shareholder, when the Shareholder has the right to
sell Shares, the Company shall deliver the Shares which may be sold to the
Shareholder, and the Company and the Shareholder shall appropriately modify the
assignment(s) in blank and the receipt to reflect the delivery of Shares.
7. REPURCHASE OF SHARES BY COMPANY.
(a) Upon an occurrence described in Section 7(b) or 7(c) hereof, and
subject to any prohibitions on the purchase of Shares by the Company under
applicable law or any agreement binding on the Company, the Shareholder shall
sell, if the Company elects to purchase, the number of Shares determined under
the applicable subsection at a price per share equal to the Value as of the date
on which such Shares are to be purchased by the Company. Notwithstanding the
foregoing, if the Company is prohibited from purchasing the Shares by applicable
law or by any contract or agreement binding on the Company, including without
limitation any loan agreement, the Company may elect to purchase the Shares
determined under the applicable subsection as soon as practicable after it
determines in good faith that it is legally and contractually permitted to do
so. If Shareholder paid for all or any part of the Shares with a promissory
note or notes payable to the Company, the Company will, and Shareholder hereby
authorizes the Company to, offset against any amounts owing to Shareholder by
the Company with respect to Shares purchased hereunder any amounts outstanding
for principal or accrued interest under such promissory note(s). Any amount so
offset shall be deducted from the purchase price to be paid under this section
upon the purchase of the Shares by the Company. The balance of the purchase
price for the Shares, if any, shall be paid by the Company, in its sole and
absolute discretion, either in cash or by delivery of a non-transferable
promissory note in the form of Exhibit C hereto (the "Note"). The Note shall
bear simple interest at Bank of America's (or its successor's) reference rate
as of the date hereof and may be for term of up to five years. The Note shall
be paid in equal annual installments of principal plus all accrued and unpaid
interest on the total principal amount. Subject to the preceding sentence, the
actual term of the Note will be determined in the sole and absolute discretion
of the Company. The indebtedness evidenced by the Note, both principal and
interest, shall be subordinated and junior, to the extent set forth in the next
sentence, to all indebtedness of the Company, both principal and interest
(accrued and accruing thereon both before and after the date of filing a
petition in any bankruptcy, insolvency, reorganization or receivership
proceedings, whether or not allowed as a claim in such case or proceeding) in
respect of borrowed money, whether outstanding on the date of the Note or
thereafter created, incurred or assumed (collectively, the "Senior Debt");
provided, that such Senior Debt shall not include any obligation of the Company
under the Equity Plan to repurchase shares of its common stock. Upon the
maturity of any of the Senior Debt by lapse of time, acceleration or otherwise,
all principal of, and interest on, all such matured Senior Debt shall first be
paid in full before any payment is made by the Company on account of principal
of, or interest on, the Note.
(b) The Company shall have the right to purchase, and in the event
the Company elects to purchase, the Shareholder shall sell to the Company, all
of the Shareholder's Shares, if the Company determines that any one or more of
the following past or present acts or events have occurred: (1) the Shareholder
engages or has engaged in behavior that is disruptive to the Company, or (2) the
Shareholder interferes with (or has interfered with) or engages in conduct that
interferes with (or has interfered with) the efficient operation of the Company
or any office of the Company, or (3) the Shareholder engages or has engaged in
acts or conduct that are injurious to or otherwise harm the Company or any
office of the Company, or (4) the Shareholder breaches or has breached any
agreement with the Company, or (5) the Shareholder engages or has engaged in
conduct or acts detrimental to the Company, or (6) the Shareholder becomes or
became affiliated with a competitor, or develops, or make a contribution to, a
competing enterprise, (7) the Shareholder discloses or has disclosed
confidential Company information to a third party, or (8) the Shareholder is or
was convicted of a felony or other crime involving fraud, dishonesty or acts of
If the Company determines that any one or more of the foregoing
acts or events has occurred, the Shareholder may appeal such determination to
the Equity Committee within ten days of receipt of written notice of such
determination from the Company. The Equity Committee shall have 30 days to
either confirm or overturn the Company's determination. If the Equity Committee
confirms the Company's determination, the Equity Committee shall also determine
if the Shareholder's acts or conduct are curable by the Shareholder. If the
Equity Committee determines that the Shareholder's acts or conduct are curable,
then the Shareholder shall be given thirty (30) days following notice of the
Equity Committee's decision to cure such acts or conduct, and an additional ten
(10) days to provide proof of such cure acceptable to the Equity Committee. If
the Equity Committee determines that the acts or conduct are not curable, or the
Shareholder does not provide proof that curable acts or conduct have been cured,
then the determination that the Shareholder engaged in acts or conduct
detrimental to the Company shall be final and binding.
Shareholder acknowledges that the Company's purchase right under
this subsection 7(b) may be financially disadvantageous to the Shareholder if,
at the time of the purchase, there is a large differential between the Value (as
that term is defined herein) of the Shares to be purchased and the then market
value of such shares.
(c) At any time, but not more frequently than once in any two-year
period, the Equity Committee may determine that the Company shall have the right
to purchase the number of Shares determined by the Equity Committee (a "Company
Call"). No Company Call shall be for a number of Shareholder's Shares greater
than ten percent (10%) of the Shares for which Sales are not yet permissible
under Section 5 hereof. The Equity Committee shall make its determination under
this Section 7(c) based upon the Equity Committee's assessment of market
conditions for the Company's
common stock and the Company's recent financial performance. Any Company Call
shall be made on a pro rata basis among the shareholders with whom the Company
has entered into agreements similar to this Agreement.
Provided, however, this Section 7 does not apply to Shares released
for sale under Section 5 herein.
8. ASSIGNMENT OF PURCHASE RIGHTS. The Company may assign, in whole
or part, its right to purchase the Shares under this Agreement to a designee(s).
9. PRESENTLY OWNED AND AFTER-ACQUIRED SHARES. The Shareholder
agrees that the terms and conditions of this Agreement shall be binding upon him
or her as to any Shares.
10. CHANGE IN MARITAL STATUS. In the event that the Shareholder's
marital status is altered by dissolution or divorce or by the death of the
Shareholder's spouse, any interest of his or her former spouse in the Shares,
whether as community property or as a result of a property settlement agreement,
a divorce decree or other legal proceeding, may be purchased by the Company and
shall be sold by the Shareholder's former spouse or his or her estate according
to the provisions of this Agreement. The Shareholder agrees to notify the
Company of any change in marital status, including, without limitation,
marriage, dissolution of marriage, divorce or death of spouse; within 10
business days of said event. The Shareholder agrees to cause any spouse who has
not signed a consent to this Agreement in the form of Exhibit D to do so at the
time notice is given to the Company under this Section.
11. AMENDMENT. No change, amendment or modification of this
Agreement shall be valid unless it is in writing and signed by the Company and
12. REMEDIES. The parties agree that the Company will be irreparably
damaged in the event the agreements contained herein are not specifically
enforced. If any dispute arises concerning the transfer of any Shares, an
injunction may be issued restraining any such transfer pending the determination
of such controversy. In the event of any controversy, such rights or obligations
shall be enforceable in a court by a decree of specific performance. Such remedy
shall, however, be cumulative and not exclusive, and shall be in addition to any
other remedy which the Company may have.
13. EXPENSES. Shareholder agrees to pay to the Company the amount of
any and all reasonable expenses, including, without limitation, reasonable
attorneys' fees and expenses, which the Company may incur in connection with the
enforcement of its rights hereunder.
14. NOTICES. Any notice required or permitted to be given hereunder
shall be in writing and shall be mailed first-class, postage prepaid, or shall
delivered, or shall be sent by telecopier. Any communication so addressed and
mailed shall be deemed to be given seven days after mailing and any
communication delivered in person shall be deemed to be given when receipted
for, or actually received by, an authorized officer of the recipient. All such
communications, if intended for the Company, shall be addressed to the Company
1800 Century Park East
Los Angeles, California 90067
Attn.: Corporate Secretary
and if intended for the Shareholder shall be addressed to the
Shareholder at his or her address as shown on the Company's books. Any party
may change his, her or its address for notice by giving notice thereof to the
other party to this Agreement. A change of address notice by the Shareholder
shall be recorded in the books of the Company as the Shareholder's address for
notice unless the Shareholder otherwise instructs the Company.
15. GOVERNING LAW. All questions with respect to the construction
of this Agreement and the rights and liabilities of the parties hereto shall be
governed by the laws of California.
16. SUCCESSORS AND ASSIGNS. Subject to the terms herein, this
Agreement shall inure to the benefit of, and shall be binding upon, the assigns,
successors in interest, personal representatives, estates, heirs and legatees of
each of the parties hereto. Nothing herein shall obligate the Company to obtain
the consent of Shareholder if the Company undergoes a reorganization,
restructuring or recapitalization, including without limitation, the acquisition
by the Company of an entity or entities controlled by the Company in connection
with the reincorporation of the Company in a state other than California.
17. ENTIRE AGREEMENT. This Agreement contains the entire Agreement
of the parties hereto and supersedes any prior written or oral agreements
between them concerning the subject matter contained herein. There are no
representations, agreements, arrangements or understandings, oral or written,
between and among the parties hereto relating to the subject matter contained in
this Agreement which are not fully set forth herein.
18. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
19. WAIVER. No waiver of any right pursuant hereto or waiver of
any breach hereof shall be effective unless in writing and signed by the party
right or breach. No waiver of any right or waiver of any breach shall constitute
a waiver of any other or similar right or breach, and no failure to enforce any
right hereunder shall preclude or affect the later enforcement of such right.
20. CAPTIONS. The captions of the various sections herein are
solely for the convenience of the parties hereto and shall not affect or control
the meaning or construction of this Agreement.
21. SEVERABILITY. Should any portion of this Agreement be
declared invalid and unenforceable, then such portion shall be deemed to be
severable from this Agreement and shall not affect the remainder hereof.
22. AGREEMENT AVAILABLE FOR INSPECTION. An original copy of this
Agreement, together with all amendments, duly executed by the Company and the
Shareholder, shall be delivered to the Secretary of the Company and maintained
by him or her at the principal executive office of the Company and shall be
available for inspection by any person requesting to see it.
23. REGULATION G, T, U OR X. The Company's possession of the
certificates evidencing the Shares pursuant to Section 6 of this Agreement does
not violate Regulation G, T, U or X of the Board of Governors of the Federal
24. ADDITIONAL DOCUMENTS. The parties hereto agree to sign all
necessary documents and take all other actions necessary to carry out the
provisions of this Agreement.
IN WITNESS, WHEREOF, the parties have executed this Amended and
Restated Stock Repurchase Agreement as of the date first written above.
Name: Elizabeth S.C.S. Murray
Title: Executive VP & CFO
IRREVOCABLE STOCK ASSIGNMENT
For good and valuable consideration pursuant to Section 6 of that
certain Amended and Restated Stock Repurchase Agreement between the undersigned
and Korn/Ferry International, the undersigned hereby sells, assigns and
transfers to _______________________ _______ shares of common stock of
Korn/Ferry International, represented by Certificate No(s). _______________
standing in the name of the undersigned on the books of said company.
Korn/Ferry International, a California corporation (the "Company"),
hereby acknowledges that it has received and is holding as custodian on behalf
of ______________________________________________________________, an officer of
the Company ("Executive"), _______ shares of Company Common Stock (the
"Shares"), represented by certificate(s) number _________, _________ and
__________ issued on _____________, 19___ in the name of Executive (copies of
which are attached hereto), together with an Irrevocable Stock Assignment
executed by Executive (the "Stock Assignment"). The Shares and the Stock
Assignment are being held by the Company pursuant to and in accordance with the
terms of that certain Amended and Restated Stock Repurchase Agreement between
the Company and Executive, and any promissory note(s) and related Stock Pledge
Agreement delivered by Executive to the Company in connection with the purchase
of all or a portion of the Shares.
Dated: _______________, 19__
NON-TRANSFERABLE SUBORDINATED PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, KORN/FERRY INTERNATIONAL, a
California corporation (the "Company") hereby promises to pay to the order of
_____________________ __________________ ("Payee") the principal sum of
______________________________ dollars ($___________), plus interest on the
unpaid balance thereof at the rate of ______% per annum [reference rate of Bank
of America or its successor on the date hereof].
Payments of principal and interest hereunder shall be in lawful money
of the United States of America and shall be payable in ______________ (____)
annual payments, the first such payment to be made on ___________, 19__, and the
final such payment to be made on ____________, 19__. Interest shall be simple
interest and shall be paid on the basis of a 360-day year and a 30-day month.
Principal and interest on this note are payable, at _______________,
or such other place as Payee shall designate in writing for such purpose at
least five business days in advance of the applicable payment date. Principal
and interest on this note may be prepaid at any time, in whole or in part,
without premium or penalty. The timely tender of any payment of principal or
interest on this note shall be deemed to have been made if a check for such
payment is mailed two business days before the day such payment is due.
If any payment of principal or interest on this note shall be due on a
Saturday, Sunday or legal holiday under the laws of the State of California, or
any other day on which banking institutions in the City of Los Angeles are
obligated or authorized by law or executive order to close, such payment shall
be made on the next succeeding business day in California, and any such extended
time shall not be included in computing interest in connection with such
The indebtedness evidenced by this note, both principal and interest,
is subordinated and junior to the extent set forth in Section 7 of that certain
Amended and Restated Stock Repurchase Agreement dated as of _________________
between the Company and Payee.
Payee shall not sell, assign or otherwise transfer or dispose of all
or any part of this note to any person, partnership, corporation, firm or other
entity, except with the prior written consent of the Company.
This note is made and delivered in California and shall be governed,
construed and enforced according to the laws of the State of California.
CONSENT OF SPOUSE OF SHAREHOLDER
The undersigned, being the spouse of the Shareholder,
________________, who has signed the foregoing Amended and Restated Stock
Repurchase Agreement, hereby acknowledges that he or she has read and is
familiar with the provisions of said Agreement including but not limited to
Section 10 herein and agrees to be bound thereby and join therein to the extent,
if any, that his or her agreement and joinder may be necessary. The undersigned
hereby agrees that the Shareholder may join in any future amendment or
modifications of the Agreement without any further signature, acknowledgment,
agreement or consent on his or her part; and the undersigned hereby further
agrees that any interest which he or she may have in the Shares held by
Shareholder shall be subject to the provisions of this Agreement.