Exhibit 10.5.1
AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this “Amendment”) is made as of this 9th day of November, 2006, by and among Salary.com, Inc., a corporation duly organized and existing under the laws of the State of Delaware (the “Company”), (ii) G. Kent Plunkett and Cathal S. Brown (the “Management Stockholders”) and (iii) the holders of a majority of the outstanding shares of the Company’s preferred stock, par value $.0001 per share (the “Majority Interest”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in that certain Second Amended and Restated Stockholders Agreement, dated as of December 18, 2003 (the “Stockholders Agreement”).
WHEREAS, in preparation for the proposed public offering of the Company’s common stock, par value $.0001 per share (the “Common Stock”), the Company desires to increase the size of its Board of Directors;
WHEREAS, the Stockholders Agreement currently provides that the number of directors may not be more than seven (7) and the parties hereto desire to permit up to ten (10) directors to be elected to the Company’s Board of Directors;
WHEREAS, pursuant to Section 14 of the Stockholders Agreement, the Stockholders Agreement may not be amended except by the written agreement of the Company, the Management Stockholders and a Majority Interest; and
WHEREAS, the undersigned hereby consent to amend the Stockholders Agreement as set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows:
| 1. | Section 8(a)(i) of the Stockholders Agreement is hereby amended by replacing “seven (7)” with “ten (10)” |
| 2. | Section 8(b) of the Stockholders Agreement is hereby amended by replacing “final director” in the fourth sentence of Section 8(b) with “remaining directors.” |
| 3. | Except as provided herein, each of the other provisions of the Stockholders Agreement shall remain in full force and effect. The parties hereto hereby confirm and agree that the amendment or waiver provisions of the Stockholders Agreement shall remain in full force and effect and any amendment or waiver of any terms of the Stockholders Agreement (as modified hereby) shall be governed by, and be effect in accordance with, the terms of the Stockholders Agreement. |
| 4. | This Agreement shall be governed by Delaware law without regard to conflicts of law principles. |
| 5. | This Agreement may be executed in one or more counterparts (including via facsimile), each of which shall be deemed an original but all of which together shall constitute one and the same instrument. |
| 6. | This Agreement (including any exhibit or schedule hereto) and the Stockholders Agreement constitute the full and entire understanding and agreement between the parties hereto with respect to the subject matter hereof. |
| 7. | Each of the parties to this Amendment severally represents and warrants to the other parties to this Amendment that it is authorized to enter into this Amendment. |
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized representatives as of the day and year first above written.
SALARY.COM, INC.
By: /s/ G. Kent Plunkett
Name: G. Kent Plunkett
Title: Chief Executive Officer
Signature Page to Amendment to Stockholders Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized representatives as of the day and year first above written.
ASCENDANT PARTNERS, LP
By: /s/ Robert Stein
Robert Stein
Partner
AINSLIE A. GARDNER TRUST 1982
By: /s/ John P. M. Higgins
John P. M. Higgins
Trustee
AINSLIE A. GARDNER TRUST 1971
By: /s/ John P. M. Higgins
John P. M. Higgins
Trustee
DAVID ALLIO
By: /s/ David Allio
David Allio
ROBERT ALLIO
By: /s/ Robert Allio
Robert Allio
DANIEL B. BERESFORD
By: /s/ Daniel B. Beresford
Daniel B. Beresford
CATHAL SEAN BROWN
By: /s/ Cathal Brown
Cathal Brown
Signature Page to Amendment to Stockholders Agreement
PHILIP M. BYRNE
By: /s/ Philip M. Byrne
Philip M. Byrne
MARTHA ANNE DORMINY
By: /s/ Martha Anne Dorminy
Martha Anne Dorminy
EVE GARDNER TRUST 1958
By: /s/ John P. M. Higgins
John P. M. Higgins
Trustee
EVE GARDNER TRUST 1971
By: /s/ John P. M. Higgins
John P. M. Higgins
Trustee
CALEB P. GARDNER
By: /s/ Caleb P. Gardner
Caleb P. Gardner
EVE G. GARDNER
By: /s/ Eve G. Gardner
Eve G. Gardner
NOAH G. GARDNER
By: /s/ Noah G. Gardner
Noah G. Gardner
ROBERT G. GARDNER
By: /s/ Robert G. Gardner
Robert G. Gardner
MARYBETH GILMARTIN
By: /s/ Marybeth Gilmartin
Marybeth Gilmartin
Signature Page to Amendment to Stockholders Agreement
JOHN GREGG
By: /s/ John Gregg
John Gregg
Managing Partner, Bluewater
KEVIN J. HANNA
By: /s/ Kevin J. Hanna
Kevin J. Hanna
JEFFREY J. HOOD
By: /s/ Jeffrey J. Hood
Jeffrey J. Hood
KEVIN R. JENKINS
By: /s/ Kevin R. Jenkins
Kevin R. Jenkins
LUKE G. GARDNER TRUST 71
By: /s/ John P. M. Higgins
John P. M. Higgins
Trustee
LYRIC CAPITAL PARTNERS, LP
By: /s/ Terry Temescu
Terry Temescu
Managing Member, General Partner
LYRIC OVERSEAS, LP
By: /s/ Terry Temescu
Terry Temescu
Managing Member, General Partner
LYRIC VENTURES, LP
By: /s/ Terry Temescu
Terry Temescu
Managing Member, General Partner
JAMES J. MAHONEY, JR.
By: /s/ James J. Mahoney, Jr.
James J. Mahoney, Jr.
Signature Page to Amendment to Stockholders Agreement
JOHN L. MARION, JR.
By: /s/ John L. Marion, Jr.
John L. Marion, Jr.
GREGORY P. MURDOCK
By: /s/ Gregory P. Murdock
Gregory P. Murdock
GREGORY KENT PLUNKETT
By: /s/ Gregory Kent Plunkett
Gregory Kent Plunkett
SALEH F. SHAHRABANI
By: /s/ Saleh F. Shahrabani
Saleh F. Shahrabani
PAMELA MARGARET SCHIATTAREGGIA
By: /s/ Pamela Margaret Shiattareggia
Pamela Margaret Shiattareggia
RHODA SCHILD
By: /s/ Rhoda Schild
Rhoda Schild
CHRISTIAN O. SCHLEGEL
By: /s/ Christian O. Schlegel
Christian O. Schlegel
RALPH J. SPUEHLER, Jr.
By: /s/ Ralph J. Spuehler, Jr.
Ralph J. Spuehler, Jr.
Signature Page to Amendment to Stockholders Agreement
STEWART A. GARDNER TRUST 1971
By: /s/ John P. M. Higgins
John P. M. Higgins
Trustee
THE STONEHARBOR GROUP, LLC
By: /s/ Stewart A. Gardner
Stewart A. Gardner
Managing Director
SUSAN TEEMAN
By: /s/ Susan Teeman
Susan Teeman
KAY TORSHEN
By: /s/ Kay Torshen
Kay Torshen
VALHALLA VENTURE FUND
By: /s/ Eric House
Eric House
Sole Member, General Partner, Mercury Funds, Inc.
JAMES VITOUS
By: /s/ James Vitous
James Vitous
WINSTON D. WREN
By: /s/ Winston D. Wren
Winston D. Wren
JONATHAN C. YOUNGHANS
By: /s/ Jonathan C. Younghans
Jonathan C. Younghans
AXEL ZDARSKY
By: /s/ Axel Zdarsky
Axel Zdarsky
CONSTANTIN ZDARSKY
By: /s/ Constantin Zdarsky
Constantin Zdarsky
Signature Page to Amendment to Stockholders Agreement