STOCK PURCHASE AGREEMENT
Published on July 28, 1999
EXHIBIT 10.12
KORN/FERRY INTERNATIONAL FUTURESTEP, INC.,
A Delaware corporation
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is dated as of December
1, 1997 ("Agreement Date"), by and among KORN/FERRY INTERNATIONAL, a California
corporation ("KFI"), MAN JIT SINGH, an individual ("Singh"), and KORN/FERRY
INTERNATIONAL FUTURESTEP, INC., a Delaware corporation ("Company").
ARTICLE 1.
PREAMBLE
1.1 The primary business purpose of the Company is to create, establish and
maintain a business providing executive search and ancillary services to
candidates and client companies on-line through the medium of the Internet (the
"Business"). It is the intention of the Shareholders that the Company be a
subsidiary of KFI. The Certificate of Incorporation, as filed with the Delaware
Secretary of State, and the By-Laws which the Shareholders intend to adopt for
the Company, are annexed hereto as Exhibits A and B, respectively.
1.2 The purpose of this Agreement is to set forth the amount, terms and
conditions under which the Shareholders will purchase shares of the Company's
voting common stock, and the nature and terms and conditions under which the
Shareholders will contribute other assets and services to the Company.
1.3 Concurrently herewith, the Shareholders and the Company are entering
into a certain Shareholders Agreement of even date (the "Shareholders
Agreement"), pursuant to which the Shareholders and the Company have agreed upon
matters relating to the management, control and operation of the Company, and
restrictions upon the transfer of shares of the capital stock of the Company.
1.4 Concurrently herewith, KFI and the Company are entering into a certain
License Agreement of even date, pursuant to which, among other things, KFI will
license to the Company the use of its name in connection with the Business (the
"License Agreement").
1.5 Concurrently herewith, the Company and Singh are entering into a
certain Employment Agreement of even date, pursuant to which, among other
things, Singh is employed as the President and Chief Executive Officer of the
Company, for the term and consideration, and subject to the conditions, set
forth therein (the "Singh Employment Agreement").
1.6 Concurrently herewith, KFI and Singh are entering into a certain
Agreement of even date
(the "KFI/Singh Agreement") and a certain Stock Repurchase Agreement of even
date (the "KFI Stock Repurchase Agreement"), pursuant to which, among other
things, Singh is admitted as a shareholder of KFI, subject to the terms and
conditions set forth therein.
1.7 The Shareholders intend that the Shareholders Agreement, the License
Agreement, the Singh Employment Agreement, the KFI/Singh Agreement, and the KFI
Stock Repurchase Agreement, be executed and delivered concurrently with the
execution and delivery of this Agreement.
1.8 Unless otherwise defined herein, all capitalized terms used in this
Agreement, shall have the meanings set forth in the Appendix annexed hereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE 2.
INITIAL CAPITALIZATION
2.1 Purchase of Initial Shares. Concurrently herewith, each
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Shareholder shall purchase the following number of shares of the voting common
stock of the Company for the cash consideration indicated, which when issued
shall constitute "Shares" within the meaning of this Agreement and the
Shareholders Agreement:
2.2 Payment of Purchase Price and Issuance of Stock Certificates. Each
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Shareholder shall pay to the Company the Total Cash Purchase Price for his or
its Shares within one (1) business day after the Agreement Date by check or by
wire transfer of immediately available funds. Upon receipt of such funds,
certificates evidencing the Shares so purchased shall be issued and delivered to
the applicable Shareholder.
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ARTICLE 3.
SECOND ROUND FINANCING AND SUBSEQUENT OFFERINGS
3.1 Purchase of Shares. At the times specified in Section 3.2 below, KFI
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hereby agrees to purchase the following additional number of shares of voting
common stock ("Additional Shares") of the Company for the cash consideration
specified, which when issued will constitute "Shares" within the meaning of this
Agreement and the Shareholders Agreement:
Cash Purchase Price
Name of Shareholder No. of Shares Per Share Total
- ------------------- ------------- ---------------------------
KFI 2,600,000 $0.50 $1,300,000
3.2 Timing of Purchase of Additional Shares. It is anticipated that the
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Additional Shares required to be purchased by KFI as set forth in Section 3.1
above will be purchased in increments during calendar year 1998, as additional
cash capital is needed by the Company. From time to time hereafter, the Board of
Directors of the Company shall determine the amount and timing of the capital
needed by the Company from the sale of these additional Shares. When such a
determination is made by the Board of Directors of the Company, the Company
shall give KFI at least thirty (30) days prior written notice specifying the
amount of capital needed ("Capital Call Amount") and the date on or before which
such capital must be funded (the "Capital Call Date"). Subject to the provisions
of Sections 3.4 below, KFI shall fund 100% of the Capital Call Amount specified
in the notice from the Company on or before the Capital Call Date, and
concurrently therewith, KFI shall be issued one (1) share of the voting common
stock of the Company for each $0.50 so funded.
3.3 Right of KFI to Purchase Other Shares. The number of shares of the
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issued and outstanding voting common stock of the Company owned from time to
time after the issuance of the Additional Shares by KFI, its subsidiaries,
employees, shareholders, partners, and trusts and other entities formed by KFI
for the purpose of holding shares of the capital stock of the Company, expressed
as a percentage of the total issued and outstanding voting common stock of the
Company, shall be referred to herein as the " KFI Percentage." It is the
intention of the parties hereto that if and when the Company sells other shares
of its voting common stock in addition to the Additional Shares (the "Other
Shares") in transactions that do not involve licensing, promotion or other
agreements with the purchaser in addition to the purchase of the Other Shares
and which do not constitute public offerings of such Other Shares ("Subsequent
Offerings"), KFI shall have the right (but not the obligation) to maintain its
then KFI Percentage with respect to the total issued and outstanding shares of
the voting common stock of the Company. Accordingly, KFI shall have the right
(but not the obligation) to purchase that number of shares of the voting common
stock being offered in the Subsequent Offerings which, after giving effect to
the issuance of all shares then being offered and sold by the Company at that
time, will result in KFI's percentage ownership of the then issued and
outstanding voting common stock of the Company being equal to (or if KFI elects
to purchase less, less than) the KFI Percentage immediately prior to the
issuance of such Other Shares in the Subsequent
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Offerings. In order to exercise this right, KFI must give written notice to the
Company of its intention to exercise such right, specifying the number of shares
it intends to purchase, sufficiently in advance of the date scheduled for the
consummation of the sale of the Other Shares being offered in the Subsequent
Offerings so that the sale of such Other Shares is not delayed beyond such
scheduled date. If KFI exercises such right, it shall thereupon become obligated
to consummate the purchase of the Other Shares it has elected to purchase for
the same price, on the same terms and conditions, and at the same time as the
Other Shares being offered in the Subsequent Offerings are to be sold. The
Company shall give KFI prompt written notice of such Subsequent Offerings
sufficiently in advance of the date scheduled for the consummation of the sale
of the Other Shares.
3.4 Right to Designate Purchasers. KFI shall have the right to assign its
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right to purchase some or all of the Additional Shares and the Other Shares
under this Article 3 to another Person or otherwise designate other Persons to
purchase some or all of the Additional Shares or Other Shares ("Designated
Purchaser") ; provided and on condition that: (a) no such Designated Purchaser
constitutes a "Non-Permitted Transferee" within the meaning of the Shareholders
Agreement; (b) each such Designated Purchaser executes a document, in form and
substance satisfactory to the Company and its counsel, pursuant to which such
Designated Purchaser agrees to be bound by the provisions of this Agreement and
the Shareholders Agreement, agrees to become a "Shareholder" hereunder and
thereunder, and agrees to receive and hold all such Additional Shares or Other
Shares subject to the restrictions, terms and conditions of this Agreement and
the Shareholders Agreement; and (c) no such assignment or designation by KFI
shall relieve KFI from its obligations under this Article 3 to purchase such
Shares, at the times and for the purchase price and on the other terms and
conditions set forth herein. The right afforded to KFI under this Section 3.4
may, subject to compliance with applicable securities laws, be effected by KFI
first acquiring such Additional Shares or Other Shares from the Company and
thereafter transferring such Additional Shares or Other Shares to the Designated
Purchasers.
ARTICLE 4.
RESTRICTIONS ON TRANSFER
4.1 Restrictions on Transferability. The Shares shall not be transferable
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except upon the conditions specified in Section 4.2 below, which conditions are
intended to insure compliance with the provisions of the Securities Act of 1933,
as amended (the "Securities Act"). Each Shareholder will cause any proposed
transferee of the Shares to agree to take and hold such securities subject to
the provisions and upon the conditions specified in this Article 4.
4.2 Legends on Stock Certificates. Each stock certificate evidencing
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Shares purchased pursuant to this Agreement and any other securities issued in
respect of such Shares upon or in connection with any Reorganization Transaction
(collectively, the "Restrictive Securities") shall (unless otherwise permitted
by the provisions of Section 4.3 below) bear the following legend or a legend
substantially similar to the following legend:
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"THE SECURITIES EVIDENCED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSE ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT IN COMPLIANCE
WITH THE REQUIREMENTS OF SUCH ACT AND OF ANY APPLICABLE STATE
SECURITIES LAWS. AT THE REQUEST OF THE COMPANY, SUCH COMPLIANCE SHALL
BE EVIDENCED BY AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL, FROM COUNSEL
FOR THE TRANSFEROR (WHO IS REASONABLY SATISFACTORY TO THE COMPANY AND
ITS COUNSEL), TO THE EFFECT THAT THE SECURITIES PROPOSED TO BE
TRANSFERRED MAY BE TRANSFERRED WITHOUT COMPLIANCE WITH THE
REGISTRATION AND QUALIFICATION REQUIREMENTS OF FEDERAL AND APPLICABLE
STATE SECURITIES LAWS, IN RELIANCE UPON AN APPLICABLE EXEMPTION FROM
SUCH REGISTRATION AND QUALIFICATION REQUIREMENTS."
4.3 Removal of Securities Act Legend. The legend required under Section
--------------------------------
4.2 above on any stock certificate evidencing the Shares may be removed or not
required if (a) such Shares have been registered under the Securities Act or (b)
the Company receives an unqualified written opinion of counsel addressed to the
Company, in form and substance reasonably satisfactory to the Company and its
counsel (from counsel who shall be reasonably satisfactory to the Company and
its counsel) to the effect that the proposed Transfer of the Restricted
Securities may be effected without registration under the Securities Act or any
applicable state securities laws, or (c) the Company receives a "no-action"
letter from the Securities and Exchange Commission (and any necessary state
securities administrator) to the effect that the distribution of such securities
without registration under the Securities Act will not result in a
recommendation by the Staff of the Commission (or such administrators) that
action be taken with respect thereto.
4.4 Other Restrictions on Transfer. The Shares shall also be subject to
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the restrictions on transfer and other provisions of the Shareholders Agreement.
4.5 Investment Representations and Warranties. Each Shareholder hereby
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represents and warrants as indicated below:
(a) Each individual Shareholder has reviewed, completed and executed
Schedule 1 hereto which is incorporated herein and made a part hereof by this
reference, and the information provided to the Company in such Schedule 1 is
complete and accurate.
(b) By reason of its, his or her business or financial experience,
each such Shareholder has such knowledge and experience in financial and
business matters that such Shareholder is capable of evaluating the merits and
risks of an investment in the Company and of
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making an informed investment decision with respect thereto, and has the
capacity to protect its, his or her interests in connection with its, his or her
purchase of the Shares.
(c) Each Shareholder has adequate means of providing for current
needs and personal contingencies, has no need for liquidity in the investment,
and is able to bear the economic risk of an investment in the Company of the
size contemplated.
(d) Each Shareholder will purchase his or its Shares for his or its
own account and for investment purposes only, and such Shareholder is not
purchasing the Shares with a view to or for sale in connection with any
distribution, resale or disposition of such Shares.
(e) The information provided in this Section (including without
limitation the information set forth in Schedule 1 hereto) may be relied upon in
determining whether the offering in which each such Shareholder proposes to
participate is exempt from registration under the Securities Act, and applicable
state securities laws and the rules promulgated thereunder.
(f) Each Shareholder will notify the Company immediately of any
material changes to the information given by such Shareholder in this Section.
(g) Each Shareholder such has a high degree of familiarity with the
business and operations of the Company and understands and has evaluated the
merits and risks inherent in any investment in the Shares.
(h) Each Shareholder is relying solely upon his or its own knowledge
of the Company and its prospects for the purpose of making his decision to
purchase the Shares, and understands that no person has been authorized in
connection with this offering to make any representations, and any
representations given or made, must not be relied upon as having been authorized
by the Company.
4.6 Acknowledgments and Covenants. Each Shareholder acknowledges and
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agrees as follows:
(a) The Company has made available to each Shareholder the
opportunity to ask questions of, and receive answers from, persons acting on
behalf of the Company concerning the Company and the proposed sale of Shares
pursuant to this Agreement, and otherwise to obtain any additional information,
to the extent the Company or its executive officers possess such information or
could acquire it without unreasonable effort or expense, necessary to verify the
accuracy of the information which such Shareholder has acquired.
(b) Each Shareholder further acknowledges and agrees with the Company
that (i) the Shares, when issued, will not have been registered under the
Securities Act, or qualified under any state securities laws; (ii) any sale or
other disposition of the Shares will be limited to a transaction permitted by
the Shareholders Agreement and as to which, in each instance, an exemption from
the registration requirements of the Securities Act and any applicable
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requirements under state securities laws can be established to the satisfaction
of the Company and its counsel.
ARTICLE 5.
ADDITIONAL COVENANTS
5.1 Reimbursement of KFI. The Company shall reimburse KFI for all legal
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fees, and other costs, expenses and capital expenditures, incurred or paid by
KFI in connection with the business of the Company, including, without
limitation, sums paid to Man Jit Singh on account of the Singh Employment
Agreement, trademark expenses, costs of equipment, advertising expenses, wages
paid to other employees of the Company, rent and license fees, and legal fees
incurred in connection with the preparation and negotiation of agreements with
Self Discovery Dynamics LLC and Dow Jones & Company (collectively referred to
herein as "Reimbursable Amounts"). Reimbursable Amounts shall not include legal
fees incurred in connection with the negotiation, preparation and implementation
of this Agreement, the Shareholders Agreement, the Singh Employment Agreement,
the License Agreement, the KFI/Singh Agreement and the KFI Stock Repurchase
Agreement. Such reimbursement shall be made within 3 business days after KFI
makes demand therefor, which may be given at any time after the date of this
Agreement. At KFI's option, exercisable in its sole and absolute discretion, all
or any portion of such Reimbursable Amounts and all or any portion of any loans
or other advances made by KFI to or for the benefit of the Company may, in lieu
of such reimbursement and repayment, be credited against any sums otherwise
payable by KFI for the purchase of Shares by KFI under this Agreement.
ARTICLE 6.
MISCELLANEOUS
6.1 Transfer of Stock. Except as otherwise expressly provided in this
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Agreement and the Shareholders Agreement, each Shareholder agrees not to
transfer any of his shares of capital stock of the Company, without complying
with the provisions of such Agreements.
6.2 Injunctive Relief. It is acknowledged that it will be impossible to
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measure the damages that would be suffered by the non-breaching party if any
party fails to comply with the provisions of this Agreement and that in the
event of any such failure, the non-breaching parties will not have an adequate
remedy at law. The non-breaching parties shall, therefore, be entitled to
obtain specific performance of the breaching party's obligations hereunder and
to obtain immediate injunctive relief. The breaching party shall not urge, as a
defense to any proceeding for such specific performance or injunctive relief,
that the non-breaching parties have an adequate remedy at law.
6.3 Certificate of Incorporation and Bylaws. Subject to the provisions of
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this Agreement, the Certificate of Incorporation and Bylaws of the Company may
be amended in any manner permitted thereunder, except that neither the
Certificate of Incorporation nor the Bylaws
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shall be amended in any manner that would conflict with, or be inconsistent
with, the provisions of this Agreement.
6.4 Preparation of Agreement. It is acknowledged by each party that such
------------------------
party either had separate and independent advice of counsel or the opportunity
to avail itself or himself of separate and independent legal counsel. Each
party hereto understands and acknowledges that the law firm of Morrison &
Foerster LLP, is legal counsel to KFI only, and does not represent any other
parties to this Agreement. In light of these and other relevant facts it is
further acknowledged that no party shall be construed to be solely responsible
for the drafting hereof, and therefore any ambiguity shall not be construed
against any party as the alleged draftsman of this Agreement.
6.5 Cooperation and Further Assurances. Each party agrees, without
----------------------------------
further consideration, to cooperate and diligently perform any further acts,
deeds and things and to execute and deliver any documents that may from time to
time be reasonably necessary or otherwise reasonably required to consummate,
evidence, confirm and/or carry out the intent and provisions of this Agreement,
all without undue delay or expense.
6.6 Interpretation.
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6.6.1 Entire Agreement/No Collateral Representations. Each party
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expressly acknowledges and agrees that this Agreement, the Shareholders
Agreement, the Singh Employment Agreement, the License Agreement, the KFI/Singh
Agreement and the KFI Stock Repurchase Agreement: (i) are the final expression
of the parties agreements with respect to the subject matter hereof and thereof
and are the complete and exclusive statements of the terms of such agreement;
(ii) supersedes any prior or contemporaneous agreements, promises, assurances,
guarantees, representations, understandings, conduct, proposals, conditions,
commitments, acts, course of dealing, warranties, interpretations or terms of
any kind, oral or written (collectively and severally, the "Prior Agreements"),
and that any such Prior Agreements are of no force or effect except as expressly
set forth herein and therein; and (iii) may not be varied, supplemented or
contradicted by evidence of Prior Agreements. Any agreement hereafter made
shall be ineffective to modify, supplement or discharge the terms of this
Agreement, in whole or in part, unless such agreement is in writing and signed
by the party against whom enforcement of the modification or supplement is
sought.
6.6.2 Waiver. No breach of any agreement or provision herein
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contained, or of any obligation under this Agreement, may be waived, nor shall
any extension of time for performance of any obligations or acts be deemed an
extension of time for performance of any other obligations or acts contained
herein, except by written instrument signed by the party to be charged or as
otherwise expressly authorized herein. No waiver of any breach of any agreement
or provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof, or a waiver or relinquishment of any other agreement
or provision or right or power herein contained.
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6.6.3 Remedies Cumulative. Except as otherwise provided in this
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Agreement, the remedies of each party under this Agreement, the Shareholders
Agreement, the Singh Employment Agreement, the KFI/Singh Agreement, the KFI
Stock Repurchase Agreement, and the License Agreement are cumulative and shall
not exclude any other remedies to which such party may be lawfully entitled.
6.6.4 Severability. If any term or provision of this Agreement or the
------------
application thereof to any Person or circumstance shall, to any extent, be
determined to be invalid, illegal or unenforceable under present or future laws
effective during the term of this Agreement, then and, in that event: (i) the
performance of the offending term or provision (but only to the extent its
application is invalid, illegal or unenforceable) shall be excused as if it had
never been incorporated into this Agreement, and, in lieu of such excused
provision, there shall be added a provision as similar in terms and amount to
such excused provision as may be possible and be legal, valid and enforceable,
and (ii) the remaining part of this Agreement (including the application of the
offending term or provision to persons or circumstances other than those as to
which it is held invalid, illegal or unenforceable) shall not be affected
thereby and shall continue in full force and effect to the fullest extent
provided by law.
6.6.5 No Third Party Beneficiary. The parties specifically disavow
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any desire or intention to create any third party beneficiary obligations, and
specifically declare that no third party shall have any rights hereunder or any
right of enforcement hereof.
6.6.6 No Reliance Upon Prior Representation. The parties acknowledge
-------------------------------------
that no other party has made any oral representation or promise which would
induce them prior to executing this Agreement to change their position to their
detriment, partially perform, or part with value in reliance upon such
representation or promise; the parties acknowledge that they have taken such
action at their own risk; and the parties represent that they have not so
changed their position, performed or parted with value prior to the time of
their execution of this Agreement.
6.6.7 Headings; References; Incorporation; Gender. The headings used
-------------------------------------------
in this Agreement are for convenience and reference purposes only, and shall not
be used in construing or interpreting the scope or intent of this Agreement or
any provision hereof. References to this Agreement shall include all amendments
or renewals thereof. All cross-references in this Agreement, unless
specifically directed to another agreement or document, shall be construed only
to refer to provisions within this Agreement, and shall not be construed to be
referenced to the overall transaction or to any other agreement or document.
Any exhibit referenced in this Agreement shall be construed to be incorporated
in this Agreement. As used in this Agreement, each gender shall be deemed to
include the other gender, including neutral genders or genders appropriate for
entities, if applicable, and the singular shall be deemed to include the plural,
and vice versa, as the context requires.
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6.7 Enforcement.
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6.7.1 Applicable Law. This Agreement and the rights and remedies of
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each party arising out of or relating to this Agreement (including, without
limitation, equitable remedies) shall be solely governed by, interpreted under,
and construed and enforced in accordance with the laws (without regard to the
conflicts of law principles thereof) of the State of Delaware, as if this
agreement were made, and as if its obligations are to be performed, wholly
within the State of Delaware.
6.7.2 Consent to Jurisdiction; Service of Process. Any action or
-------------------------------------------
proceeding arising out of or relating to this Agreement shall be filed in and
heard and litigated solely before the state courts of California located within
the County of Los Angeles. Each party generally and unconditionally accepts the
exclusive jurisdiction of such courts and to venue therein, consents to the
service of process in any such action or proceeding by certified or registered
mailing of the summons and complaint in accordance with the notice provisions of
this Agreement, and waives any defense or right to object to venue in said
courts based upon the doctrine of "Forum Non Conveniens". Each party
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement.
6.7.3 Attorneys' Fees and Costs. If any party institutes or should
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the parties otherwise become a party to any Action Or Proceeding based upon or
arising out of this Agreement including, without limitation, to enforce or
interpret this Agreement or any provision hereof, or for damages by reason of
any alleged breach of this Agreement or any provision hereof, or for a
declaration of rights in connection herewith, or for any other relief, including
equitable relief, in connection herewith, the Prevailing Party in any such
Action Or Proceeding, whether or not such Action Or Proceeding proceeds to final
judgment or determination, shall be entitled to receive from the non-Prevailing
Party as a cost of suit, and not as damages, all Costs And Expenses of
prosecuting or defending the Action Or Proceeding, as the case may be,
including, without limitation, reasonable Attorneys' And Other Fees.
6.8 Notices. Any notice, approval, disapproval, consent, waiver, or other
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communication (collectively, "Notices") required or permitted to be given under
this Agreement shall be in writing and shall be delivered personally or mailed,
certified or registered United States mail, postage prepaid, return receipt
requested, or sent by Federal Express or other reliable overnight carrier for
next business day delivery, or by fax. All Notices shall be deemed delivered
(a) if personally served, when actually delivered to the address of the person
to whom such Notice is given, (b) if sent via Federal Express or other overnight
courier for next business day delivery, one (1) business day following the date
on which the Notice is given to Federal Express or other overnight courier, (c)
if by mail, three (3) days following deposit in the United States mail, or (d)
if by fax, when the transmitting telecopier machine has confirmed that the
Notice has been completed or sent without error. All Notices shall be addressed
to the party to whom such Notice is to be given at the party's address set forth
below or as such party shall otherwise direct by Notice sent pursuant to this
Section 6.8:
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If to the Company: Korn/Ferry International Futurestep, Inc.
c/o Korn/Ferry International
1800 Century Park East, Suite 900
Los Angeles, California 90067
Attention: Man Jit Singh, President
Telephone: (310) 843-4121
Telecopier: (310) 553-8640
If to KFI: Korn/Ferry International
1800 Century Park East, Suite 900
Los Angeles, California 90067
Attention: Peter L. Dunn, Vice Chairman
Telephone: (310) 843-4100
Telecopier: (310) 553-8640
With a copy to: Michael C. Cohen, Esq.
Morrison & Foerster LLP
555 West Fifth Street, 35th Floor
Los Angeles, California 90013
Telephone: (213) 892-5404
Telecopier: (213) 892-5454
If to Singh: Mr. Man Jit Singh
1050 Brooklawn Drive
Los Angeles, CA 90077
Telephone: (310) 278-1572
Telecopier: (310) 278-1572
With a copy to: Paul H. Irving, Esq.
Manatt, Phelps & Phillips LLP
11355 W. Olympic Boulevard
Los Angeles, CA 90064
Telephone: (310) 312-4000
Telecopier: (310) 312-4224
6.9 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, and all of which together shall constitute
one and the same instrument, binding on all parties hereto. Any signature page
of this Agreement may be detached from any counterpart of this Agreement and re-
attached to any other counterpart of this Agreement identical in form hereto by
having attached to it one or more additional signature pages.
6.10 Assignment. Except as otherwise expressly provided in this Agreement,
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no party hereto may assign their rights or delegate their duties under this
Agreement without the prior written consent of all of the other parties hereto;
provided, however, that KFI may, without the
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consent of any other party hereto, assign its rights and delegate its duties
under this Agreement to any Person which acquires all or substantially all of
the assets of KFI, either through a purchase of such assets, by merger, by
consolidation, by reorganization, or otherwise.
IN WITNESS WHEREOF, the Company and the Shareholders have executed this
Agreement in counterparts.
KORN/FERRY INTERNATIONAL,
a California corporation
By: /s/ Peter L. Dunn
--------------------------------
Peter L. Dunn,
Chief Administrative Officer
KORN/FERRY INTERNATIONAL
FUTURESTEP, INC.,
a Delaware corporation
By: /s/ Man Jit Singh
--------------------------------
Man Jit Singh, President
/s/ Man Jit Singh
-----------------------------------
MAN JIT SINGH
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APPENDIX
CERTAIN DEFINITIONS
1. "Action Or Proceeding" means any and all claims, suits, actions,
notices, inquiries, proceedings, hearings, arbitrations or other similar
proceedings, including appeals and petitions therefrom, whether formal or
informal, governmental or non-governmental, or civil or criminal.
2. "Affiliate" means with respect to any person or entity ("Person No.
1"), any other person or entity which either (i) directly or indirectly owns or
controls Person No. 1, or (ii) is directly or indirectly owned or controlled by
Person No. 1, or (iii) is under direct or indirect common control with Person
No. 1. The term "control" (and its corollaries) includes, without limitation,
ownership of interests representing a majority of total voting power in an
entity, and "ownership" (and its corollaries) includes, without limitation,
ownership of a majority of the equity interests in an entity.
3. "Agreement" means this Agreement and all agreements, exhibits,
schedules and appendices expressly annexed hereto.
4. "Attorneys' And Other Fees" means attorneys' fees, accountants' fees,
fees of other professionals, witness fees (including experts engaged by the
parties, but excluding shareholders, officers, employees or partners of the
parties), and any and all other similar fees incurred in the prosecution or
defense of an Action Or Proceeding.
5. "Costs And Expenses" means the cost to take depositions, the cost to
arbitrate a dispute, if applicable, and the costs and expenses of travel and
lodging incurred with respect to an Action Or Proceeding.
6. "Person" means any individual, firm, corporation, trust, partnership
(limited or general), limited liability company, sole proprietorship or
association.
7. "Prevailing Party" means the party who is determined to prevail by the
court after its consideration of all damages and equities in an Action Or
Proceeding, whether or not the Action Or Proceeding proceeds to final judgment.
The court shall retain the discretion to determine that no party is the
Prevailing Party in which case no party shall be entitled to recover its Costs
And Expenses.
8. "Reorganization Transaction" means any stock split, stock dividend,
merger or consolidation involving the Company, any recapitalization of the
Company, or any transaction involving the sale of all or substantially all of
the assets of the Company.
9. "Shares" means all of the issued and outstanding shares of the capital
stock of the Company now owned or hereafter acquired by the Shareholders,
including, without limitation, the shares purchased and to be purchased pursuant
to the Stock Purchase Agreement.
10. "Stock" means all issued and outstanding shares of the voting capital
stock of the Company and includes the Shares.
11. "Transfer" when used with reference to the Shares means any sale,
transfer, assignment, pledge, grant of a security interest in, gift or other
disposition of any of the Shares, or any right or interest therein, with or
without consideration, directly or indirectly, whether voluntary or involuntary,
by operation of law or otherwise.
-2-
SCHEDULE 1
REPRESENTATIONS AND WARRANTIES
Each individual Shareholder should initial each of the following
representations, if applicable:
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(a) Shareholder is a U.S. Person. (A "U.S. Person" includes (i) any
natural person resident in the United States, or (ii) any partnership or
corporation organized or incorporated under the laws of the United States).
(b) Shareholder's individual net worth or joint net worth with
his spouse exceeds $1,000,000.
(c) Shareholder's income (including, but not limited to, salary,
bonus, interest and dividend income and vested contributions to any pension or
profit sharing plan) was in excess of $200,000 in each of the last two years,
and Shareholder reasonably expects an income in excess of $200,000 in this year.
(d) Shareholder's joint income with his spouse (including, but not
limited to salary, bonus, interest and dividend income and vested contributions
to any pension or profit sharing plan) was in excess of $300,000 in each of the
last two years, and Shareholder reasonably expects a joint income in excess of
$300,000 in this year.
(f) Shareholder's investment in the Shares does not exceed 10% of
Shareholder's net worth or joint net worth with Shareholder's spouse.
SHAREHOLDER
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