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OPTION AGREEMENT
THIS AGREEMENT is made as of the 13th day of October 1999.
BETWEEN:
PAUL CHAMPAGNE,
of the Regional Municipality of Ottawa Carleton, Province of Ontario
(hereinafter referred to as "Champagne")
AND:
E-CRUITER.COM INC.,
a corporation incorporated under the laws of Canada
(hereinafter referred to as "E-Cruiter")
WHEREAS:
A. Champagne and Worklife Solutions, Inc. ("Worklife") entered into a
letter agreement dated as of October 13, 1999 (the "Letter Agreement"),
a copy of which is attached hereto as Schedule "A"; and
B. The parties wish to set forth herein the terms by which Champagne may
assign to E-Cruiter all of his right, title and interest in the Letter
Agreement and all documents referenced therein.
NOW THEREFORE in consideration of the premises and the mutual covenants
herein and other good and valuable consideration (the receipt and sufficiency of
which is hereby acknowledged by each of the parties) the parties hereto covenant
and agree as follows:
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1. DEFINITIONS
1.1 "Agreement" "hereto", "herein", "hereof", "hereunder" and similar
expressions refer to this Assignment Agreement and not any particular
paragraph or any particular portion of this agreement and includes all
schedules attached to this agreement.
2. OPTION
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2.1 E-Cruiter shall have an option, with the consent of Champagne, to
acquire all of the rights granted by the Letter Agreement and all of
the shares issued to Champagne pursuant to that Letter Agreement at a
price to be the greater of: the fair market value of the rights and
shares granted by the Letter Agreement or US$1,000,000. The term of
this option shall be for a period of six (6) months effective this
date. The option may be extended by mutual consent for a further six
(6) months.
3. FURTHER ASSURANCES
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3.1 The parties hereto shall do all further acts and things and execute
all further documents reasonably required in the circumstances to
effect the provisions and intent of this Agreement.
4. ENTIRE AGREEMENT
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4.1 This Agreement together with the Schedule attached hereto
constitutes the entire agreement between the parties and supersedes all
prior and contemporaneous agreements, understandings and discussions,
whether oral or written, and there are no other warranties, agreements
or representations between the parties except as expressly set forth
herein.
5. PROPER LAW
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5.1 This Agreement shall be governed by and interpreted in accordance
with the laws of the Province of Ontario, and the laws of Canada
applicable therein.
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6. AMENDMENT OF AGREEMENT
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6.1 This Agreement may be altered, amended or annulled at any time by
the mutual consent in writing of the parties hereto.
7. HEADINGS
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7.1 The headings appearing throughout this Agreement are inserted for
convenience only and form no part of the Agreement.
8. SEVERABILITY
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8.1 The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any other
provision hereof and any such invalid or unenforceable provision will
be deemed to be severable.
9. WAIVERS
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9.1 No amendment, waiver or termination of this Agreement will be
binding unless executed in writing by the parties to be bound hereby.
No waiver of any provision of this Agreement will be deemed or will
constitute a waiver of any other provision, nor will any such waiver
constitute a continuing waiver unless expressly provided.
10. COUNTERPARTS
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10.1 This Agreement may be executed in several counterparts, all of
which together shall constitute one and the same instrument. This
Agreement may be executed by facsimile with originally executed
documents to follow by courier thereafter and shall be as binding as if
originally executed.
IN WITNESS WHEREOF this Agreement has been executed by the parties
hereto as of the date first set forth above.
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SIGNED, SEALED AND DELIVERED
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Witness PAUL CHAMPAGNE
E-CRUITER.COM INC.
Per:
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Title:
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SCHEDULE "A"
LETTER AGREEMENT
Paul Champagne
141 Kerry Hill Crescent
Dunrobin, Ontario
Canada K0A 1T0
October 13, 1999
Sunir K. Kapoor
Chairman & CEO
WorkLife Solutions, Inc.
20770 Monte Sunset Drive
San Jose, CA 95120
Re: Upcoming Transactions
Dear Mr. Kapoor:
I am writing this letter (the "Letter") in reference to that Secured Promissory
Note ("First Note") and Security Agreement ("Security Agreement") dated as of
September 30, 1999 by and between WorkLife Solutions, Inc., a Delaware
corporation ("WorkLife") and Paul Champagne ("Champagne"). In connection with
the transactions contemplated in the above-referenced documents, I am writing to
clarify certain agreements and understandings of the parties that are not fully
memorialized in such documents.
We now agree as follows:
1. Second Secured Promissory Note. Following WorkLife's execution of the Secured
Promissory Note ("Second Note") attached hereto as Exhibit A, and the Amendment
to the Security Agreement, attached hereto as Exhibit B, Champagne shall
transfer to WorkLife a principal amount of Eight Hundred Thousand U.S. Dollars
($800,000). In connection with the above and that Inter-Creditor Agreement dated
as of October 6, 1999 by and between WorkLife, Champagne, and Minority
Enterprise Fund, L.P., a California limited partnership ("MEF"), WorkLife shall
also promptly obtain for Champagne an original counterpart of the Amendment to
the Inter-Creditor Agreement, attached hereto as Exhibit C, duly executed by an
authorized MEF representative.
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2. Board Position. WorkLife shall make every effort to ensure that Champagne's
designee is appointed or elected as a member of WorkLife's Board. Such effort
shall include taking all actions to increase the size of the Board and electing
Champagne's designee to fill such vacancy, all in accordance with Article 3 of
the WorkLife Bylaws. In addition, WorkLife shall promptly procure for Champagne
counterparts of the Voting Agreement attached hereto as Exhibit D, duly executed
by WorkLife stockholders holding a sufficient number of shares to ensure the
election of Champagne's designee to the Board on an ongoing basis.
3. Acquisition of WorkLife. If WorkLife does not raise at least Two Million U.S.
Dollars ($2,000,000) in new capital through its Series C Preferred Stock
financing, such amount not to include any amounts received from Champagne
("Series C Financing"), after the date hereof and on or prior to December 31,
1999, or at least Four Million U.S. Dollars ($4,000,000) after the date hereof
and on or prior to January 31, 2000, Champagne shall have the option to purchase
WorkLife for a price determined by an independent business valuation
professional mutually agreeable to WorkLife and Champagne (each an "Acquisition
Option," and collectively the "Acquisition Options"). If WorkLife and Champagne
are unable to agree on such a professional within 10 days after Champagne's
exercise of an Acquisition Option, either party may apply to Arthur Andersen for
such independent valuation, which valuation shall be final for the purposes of
such Acquisition Option. Any valuation of WorkLife under this paragraph shall be
based upon the likely value of what an independent party would pay to purchase
all of the outstanding capital stock or assets of WorkLife, on a fully diluted
basis, given the financial condition of WorkLife at the time of such valuation.
In the event that WorkLife receives a bonafide offer to be acquired by
a third party prior to the effective date of either Acquisition Option,
Champagne shall have the right to acquire WorkLife on the same terms as the
third party offer ("Third Party Option"). If Champagne fails to exercise its
Third Party Option within 10 days after receiving written notice of the third
party's offer, WorkLife may accept the third party's offer, and Champagne's
Acquisition Options shall be terminated. Notwithstanding the foregoing,
Champagne's Acquisition Options shall continue in force if either (a) WorkLife
and the third party do not enter into a binding agreement regarding the
consummation of the acquisition contemplated by the third party's offer within
30 days of such offer, or (b) such acquisition by the third party is not
consummated within 180 days of such offer.
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The Acquisition Options and the Third Party Option shall be exercised
by the delivery of written notice from Champagne to WorkLife within ten (10)
days after the date the option becomes effective evidencing his desire to
exercise such option. Upon Champagne's exercise of any option, WorkLife shall
cooperate with Champagne to determine the form of acquisition that will be most
beneficial to Champagne, such determination to include review of tax issues and
corporate approval procedures. Champagne shall make the final determination as
to the form of the acquisition, and WorkLife shall make every effort to ensure
that all necessary approvals are received in order to effect the acquisition. In
order to give effect to Champagne's options, promptly following the execution of
this Letter, WorkLife shall procure counterparts of the Voting Agreement
attached hereto as Exhibit D, duly executed by WorkLife stockholders holding a
sufficient number of shares to ensure the approval of any acquisition of
WorkLife by Champagne.
4. Conversion of Notes. Following the execution of the Voting Agreement as
outlined in Sections 2 and 3 above, and following written confirmation of MEF's
agreement to simultaneously convert its outstanding debt from WorkLife, whether
fixed or contingent, into shares of WorkLife's capital stock, Champagne shall
immediately tender the First Note and the Second Note for shares of WorkLife's
Series C Preferred Stock ("Series C Shares"). The amount of Series C Shares
issued to Champagne shall be equal to the principal value of the notes together
with any accrued interest thereon, divided by the lowest price paid for the
purchase of one Series C Share of WorkLife by outside investors (currently $1.50
per share). Notwithstanding the above and any provisions currently contained in
any Series C Financing documents, Champagne shall receive Series C Shares on
conditions no less favorable than those granted to any other recipient of Series
C Shares. Following Champagne's receipt of any Series C Shares, Champagne shall
have the right to freely transfer all or a portion of such Series C Shares to a
designee. Upon the conversion of all outstanding amounts owed under the First
Note and the Second Note into Series C shares of WorkLife, Champagne or his
designee shall take all actions necessary to release all of his liens on the
assets of WorkLife, including filing UUC-3 termination statements.
5. Issuance of Common Stock. Champagne has entered into a strategic partnership
with WorkLife under which Champagne, as a principal shareholder of
E-Cruiter.com, Inc., a corporation incorporated under the laws of Canada
("E-Cruiter"), shall cause E-Cruiter to enter into that Sales & Marketing
Agreement with WorkLife dated as of October 13, 1999. As an inducement to cause
E-Cruiter to enter into such agreement, WorkLife shall issue to Champagne an
amount of shares of WorkLife's Common Stock equal to 11% of WorkLife's capital
stock then outstanding. At the closing of the Series C Financing, but in no
event later than January 31, 2000, WorkLife shall issue to Champagne an
additional amount of shares of WorkLife's Common Stock sufficient to provide
Champagne with an aggregate of at least 15% of the shares of WorkLife's capital
stock on a fully diluted basis, such percentage to also include any Series C
Shares already received or to be received by Champagne as a result of the tender
or proposed tender of the First Note and Second Note under Section 4 above.
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6. Assignment. Champagne shall have the right to assign to E-Cruiter any rights
under this Letter and the related agreements, in whole or in part, by giving
written notice to Worklife. Champagne shall also have the right to assign all of
his rights under this Letter and the related agreements, in whole but not in
part, to an assignee other than E-Cruiter, by giving written notice to WorkLife.
Contemporaneously with any assignment under this Letter, the assignee must agree
in writing to be bound by the relevant terms of this Letter.
7. Governing Law. This Letter shall be governed by and construed in accordance
with the laws of California, without regard to its principles of conflicts of
laws.
8. Counterparts. This Letter may be executed in one or more counterparts for the
convenience of the parties hereto, all of which together shall constitute one
and the same Letter. Facsimile copies of this Letter and the Exhibits hereto, as
well as any signatures received by facsimile, shall be treated as originals.
9. Supremacy. In the event of any discrepancy between the terms of this Letter
and the terms of the documents referred to herein, the terms set forth herein
shall control.
If the foregoing accurately reflects the agreements and understandings between
us, please so acknowledge by signing and returning the enclosed copy of this
Letter.
Very truly yours,
Paul Champagne
ACKNOWLEDGED AND AGREED AS OF OCTOBER 13, 1999:
Sunir K. Kapoor
Chairman & CEO
WorkLife Solutions, Inc.
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Exhibit A
SECURED PROMISSORY NOTE
US$800,000 October 13, 1999
San Jose, California
FOR VALUE RECEIVED, WorkLife Solutions, Inc.("Maker"), promises to pay
to Paul Champagne, or order (collectively, the "Holder"), at 141 Kerry Hill
Crescent, Dunrobin, Ontario, Canada K0A 1T0, or such other place as Holder may
from time to time designate, in lawful money of the United States, the principal
sum of Eight Hundred Thousand Dollars ($800,000), plus interest thereon, in the
manner set forth below.
1. Interest. Interest on the principal sum of this Secured Promissory
Note (the "Note") will accrue at the rate of seven percent (7 1/8%) per annum
based on a 360 day year and the actual number of days elapsed.
2. Payment. The entire principal sum and all accrued interest and any
other sums payable hereunder (collectively, the "Payment") will be due and
payable in full on November 15, 1999 (the "Maturity Date").
3. Default Interest. If Maker fails to make the Payment by the Maturity
Date, whether or not Holder has declared a default hereunder, interest will
accrue on the delinquent Payment at the rate of eleven percent (11%) per annum
(the "Default Rate") commencing on the Maturity Date and continuing until all
sums due and owing under this Note are received by Holder.
4. Prepayment. This Note may be prepaid in whole or in part, at any
time.
5. Application of Payments. All payments received by Holder will be
applied first to all fees, costs, and expenses incurred by Holder with respect
to this Note or any other document executed by Maker in connection herewith;
second, to accrued and unpaid interest; and third, to the unpaid principal
balance of this Note.
6. Security. This Note is secured by a Security Agreement dated as of
September 30, 1999 and amended as of even date herewith(the "Security
Agreement"), pursuant to which Maker granted to Holder a blanket first lien and
security interest in all of Maker's assets (collectively, the "Collateral").
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7. Default and Remedies.
7.1 Default. Maker will be in default under this Note if: (i)
Maker fails to make the Payment by the Maturity Date, (ii) Maker breaches any
other covenant or agreement under this Note, (iii) Maker agrees to or does sell,
convey, encumber, hypothecate or otherwise alienate the Collateral, or any part
thereof, or any interest therein, or is divested of its title to the Collateral
or any interest therein in any manner or in any way, whether voluntarily or
involuntarily, without the prior written consent of Holder, or (iv) an event of
default occurs under the Security Agreement.
7.2 Remedies. Upon Maker's default, Holder may: (i) upon
written notice to Maker, declare the entire principal sum and all accrued and
unpaid interest hereunder immediately due and payable and (ii) exercise any and
all of the remedies provided in the Security Agreement and by law.
8. Waivers. Maker, and any endorsers or guarantors hereof, severally
waive diligence, presentment, protest and demand and also notice of protest,
demand, dishonor, acceleration, intent to accelerate, and nonpayment of this
Note, and expressly agree that this Note, or any payment hereunder, may be
extended from time to time without notice, and consent to the acceptance of
further security or the release of any security for this Note, all without in
any way affecting the liability of Maker or any endorsers or guarantors hereof.
No extension of time for the payment of this Note, or any installment hereof,
agreed to by Holder with any person now or hereafter liable for the payment of
this Note, will affect the original liability of Maker under this Note, even if
Maker is not a party to such agreement. Holder may waive its right to require
performance of or compliance with any term, covenant or condition of this Note
only by express written waiver.
9. Maximum Legal Rate of Interest. All agreements between Maker and
Holder, whether now existing or hereafter arising, are hereby limited so that in
no event will the interest charged hereunder or agreed to be paid to Holder
exceed the maximum amount permissible under applicable law. Holder will be
entitled to amortize, prorate and spread throughout the full term of this Note
all interest paid or payable so that the interest paid does not exceed the
maximum amount permitted by law. If Holder ever receives interest or anything
deemed interest in excess of the maximum lawful amount, an amount equal to the
excessive interest will be applied to the reduction of the principal, and if it
exceeds the unpaid balance of principal hereof, such excess will be refunded to
Maker. If interest otherwise payable to Holder would exceed the maximum lawful
amount, the interest payable will be reduced to the maximum amount permitted
under applicable law. This paragraph will control all agreements between Maker
and Holder in connection with the indebtedness evidenced hereby.
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10. Representations and Warranties. Maker represents and warrants to
Holder that it has full power, authority and legal right to execute, deliver and
comply with this Note and any other document or instrument relating to this Note
to be executed by it. All corporate actions of Maker that are necessary or
appropriate for the execution and delivery of and compliance with this Note and
such other documents and instruments have been taken. Upon its execution and
delivery, this Note will constitute the valid and legally binding obligation of
Maker, enforceable against it in accordance with its terms, subject only to
bankruptcy, insolvency, reorganization, moratorium and other laws applicable to
creditors' rights or the collection of debtors' obligations generally.
11. Successors and Assigns. The terms of this Note will inure to the
benefit of and bind Maker and Holder and their respective heirs, executors,
administrators, legal representatives, successors, assigns, agents,
representatives, spouses, and all persons claiming by or through them.
12. Time. Time is of the essence with respect to all of the provisions
of this Note.
13. Replacement Note. If this Note is destroyed, lost or stolen, Maker
will deliver a new secured promissory note to Holder on the same terms and
conditions as this Note, with a notation of the unpaid principal and accrued and
unpaid interest in substitution of the prior Note. Holder will furnish to Maker
reasonable evidence that the Note was destroyed, lost or stolen and any security
or indemnity that may be reasonably required by Maker in connection with the
replacement of this Note.
14. Governing Law; Arbitration; Venue; Equitable Relief.
14.1 Governing Law. This Note will be governed by and
construed and enforced in accordance with the laws of the State of California,
without regard to principles of conflicts of laws.
14.2 Initiation of arbitration proceeding. Maker agrees that
all disputes, claims and controversies between Maker and Holder concerning the
interpretation or enforcement of this Note, or any other matter arising out of
or relating to this Note, will be arbitrated pursuant to the provisions of this
paragraph. Either Maker or Holder may initiate an arbitration proceeding by
making a written demand for arbitration and serving a notice of said demand upon
the adverse party by hand delivery or overnight, express carrier, and upon the
San Francisco regional office of J.A.M.S ("JAMS"). A written
response to the demand must be served upon the initiating party and JAMS within
ten (10) days of the adverse party's receipt of the demand.
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14.3 Selection of arbitrator. The arbitration will be
conducted by a single arbitrator who is a retired judge associated with the San
Francisco regional office of JAMS. The arbitrator will be selected in accordance
with the JAMS Rules of Practice & Procedure for Arbitration then in effect (the
"JAMS Rules") within fourteen (14) days of the service of the written demand for
arbitration. If Maker and Holder cannot so agree upon the selection of the
arbitrator within the fourteen (14) day period, then the arbitration will be
conducted by a single arbitrator who will be a retired judge associated with the
San Francisco regional office of JAMS, and who will be selected by JAMS within
five (5) days of the service of a written request that JAMS select the
arbitrator.
14.4 Venue. Maker covenants and agrees that any arbitration
proceeding instituted under the provisions of this Note will be conducted in San
Francisco through the San Francisco regional office of JAMS. Maker acknowledge
to Holder that its agreement to abide by the specific provisions of this
paragraph is a material inducement to Holder to make the loan evidenced by this
Note, and that Holder is reasonably relying upon Maker's representation.
14.5 Arbitration hearing and award. The arbitration hearing
will be conducted within thirty (30) days of the appointment of the arbitrator.
The arbitration will be conducted in accordance with the JAMS Rules. The
arbitrator's award will be conclusive and binding upon Maker and Holder. The
arbitrator's award will provide, among other things, that the prevailing party
in the arbitration is entitled to recover from the adverse party its costs and
expenses incurred in connection therewith including, without limitation,
attorneys' fees as determined by the arbitrator, the costs of the arbitration,
and actual out-of-pocket expenses including, without limitation, expert witness
and consultants' fees, if any. Judgment upon the arbitrator's award may be
entered in any court of competent jurisdiction.
14.6 Equitable Relief. The Arbitrator has the authority to
grant Holder or Maker equitable relief on such terms and conditions as it deems
reasonably necessary or appropriate.
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IN WITNESS WHEREOF, Maker has executed this Note as of the date and
year first above written.
Maker:
WORKLIFE SOLUTIONS, INC.
By:___________________________
Sunir Kapoor
Chairman & Chief Executive Officer
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Exhibit B
FIRST AMENDMENT TO SECURITY AGREEMENT
THIS FIRST AMENDMENT TO security AGREEMENT ("Amendment") is made and
entered into as of the 13th day of October, 1999, by and between WorkLife
Solutions, Inc., a Delaware corporation ("Borrower"), and Paul Champagne
("Lender").
R E C I T A L S
A. On or about September 30, 1999, Lender and Borrower entered into a
Security Agreement dated as of September 30, 1999 (the "Agreement"), pursuant to
which Borrower granted to Lender a security interest in all of Borrower's
assets, as security for the payment and performance of Borrower's obligations
under a secured promissory note dated September 30, 1999, in the principal face
amount of $200,000 (the "Note"), which Borrower made, executed, and delivered to
Lender, and which evidences a $200,000 loan to Borrower by Lender.
B. On or about October 13, 1999, Lender loaned Borrower the sum of
Eight Hundred Thousand Dollars ($800,000). This $800,000 loan is evidenced by a
secured promissory note dated October 13, 1999, in the principal face amount of
$800,000 (the "Second Note"), which Borrower made, executed, and delivered to
Lender.
C. As security for the payment and performance of its obligations to
Lender under the Second Note, Borrower desires to grant to Lender a security
interest in all of Borrower's assets. Borrower and Lender wish to amend the
Agreement to expand the definition of "Obligations" to include the Second Note
and any other document or instrument evidencing any other loan made at any time,
now or in the future, by Lender to Borrower.
NOW, THEREFORE, in consideration of the foregoing Recitals, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Lender and Borrower agree as follows:
1. Paragraph 1 of the Agreement is amended as follows: the definition
of "Obligations" is amended to read as follows:
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"Obligations" means all debts, liabilities, obligations,
covenants and duties owing to Lender by Borrower, arising under the Note, and/or
that certain secured promissory note dated October 13, 1999, in the principal
face amount of $800,000 (the "Second Note")and/or this Agreement and/or any
other document or instrument evidencing any other loan made at any time, now or
in the future, by Lender to Borrower, and all extensions, amendments,
modifications, restructurings and/or refinancings of any of the same.
2. Except as is explicitly set forth in this Amendment, the Agreement
remains unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties to this Agreement have executed and
delivered this Agreement as of the date and year first above written.
WORKLIFE SOLUTIONS, INC.
By:_____________________________ _______________________________
Sunir Kapoor, Chairman & CEO PAUL CHAMPAGNE
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Exhibit C
FIRST AMENDMENT TO INTER-CREDITOR AGREEMENT
THIS FIRST AMENDMENT TO INTER-CREDITOR AGREEMENT ("Amendment") is made
and entered into as of October 13, 1999, by and among Minority Enterprise Fund,
L.P., a California limited partnership ("MEFLP"), Paul Champagne, an individual
("Lender"), and WorkLife Solutions, Inc., a Delaware corporation ("Borrower").
RECITALS
A. On or about October 6, 1999, the parties entered into an Inter-Creditor
Agreement, pursuant to which MEFLP and Lender agreed to share, pari passu, a
first lien and security interest in the Borrower's Collateral.
B. On or about October 13, 1999 Lender loaned Borrower an additional sum of
Eight Hundred Thousand Dollars ($800,000).
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lender and Borrower agree as follows:
1. The amount of the Bridge Loan referred to in the second line of Recital
E of the Inter-Creditor Agreement is hereby amended from "$200,000" to
read "$1,000,000".
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IN WITNESS WHEREOF, the parties to this Agreement have executed and
delivered this Agreement as of the date and year first above written.
WORKLIFE SOLUTIONS, INC. MINORITY ENTERPRISE FUND, L.P.
By:____________________________ By:____________________________
Sunir Kapoor Rodney M. White
Chairman & Chief Managing Partner
Executive Officer
____________________________
PAUL CHAMPAGNE
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Exhibit D
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of October
13, 1999, by and among Paul Champagne ("Champagne"), Sunir Kapoor, and the
undersigned stockholders (each a "Stockholder" and collectively the
"Stockholders"), and WorkLife Solutions, Inc., a Delaware corporation (the
"Corporation").
WHEREAS, as of the Effective Date, as defined below, each Stockholder holds of
record and beneficially certain shares of the Corporation's stock; and
WHEREAS, the Stockholders have agreed to act and to provide for the future
voting of their shares of the Corporation's stock as set forth below.
NOW THEREFORE, in consideration of the mutual covenants and undertakings given
by the Stockholders to each other, the Stockholders agree as follows:
1. Effective Date. This Agreement shall become effective ("Effective Date") at
the earlier of the date on which either Champagne or Champagne's designee
receive in any manner any share of the Corporation's stock.
2. Agreement to Vote for Champagne's Nominee. So long as either Champagne or
Champagne's designee shall continue to own any of the Corporation's shares, the
Stockholders hereby agree to vote all shares of the Corporation now or hereafter
owned by them, whether beneficially or otherwise, at any regular or special
meeting of the Corporation, or, in lieu of any such meeting, to give their
written consent, to elect Champagne's nominee as a member of the Corporation's
Board of Directors. Champagne shall provide each Stockholder with the name of
the nominee as selected by Champagne from time to time.
3. Agreement to Vote for Acquisition. As contemplated by that Letter dated as of
October 13, 1999 by and between the Corporation and Champagne, Champagne has
been granted certain options to acquire the Corporation (the "Purchase Option").
The Stockholders hereby agree to vote all shares of the Corporation now or
hereafter owned by them, whether beneficially or otherwise, at any regular or
special meeting of the Corporation, or, in lieu of any such meeting, to give
their written consent, to approve any sale of the Corporation's assets to
Champagne or Champagne's designee pursuant to the Purchase Option, whether or
not such sale shall constitute a sale of all or substantially all of the
Corporation's assets, and to approve any merger, consolidation or other form of
acquisition of the Corporation by Champagne or Champagne's designee pursuant to
the Purchase Option. The Stockholders further agree to enter into any
subscription agreement or other agreements that may be necessary to effect such
acquisition.
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4. Successors in Interest. The provisions of this Agreement shall be binding
upon the successors in interest of any of the shares of the Corporation now or
hereafter owned by the Stockholders. The Corporation shall not permit the
transfer of any of the Stockholders' shares on its books or issue a new
certificate representing any such shares unless and until the person to whom
such security is transferred shall have executed a written agreement pursuant to
which such person becomes subject to the provisions of this Agreement and agrees
to be bound by all the provisions hereof.
5. Termination. This Agreement shall terminate at the earlier to occur of (a)
the closing date of an initial public offering of the Corporation's shares
pursuant to a registration statement filed, and declared effective under the
United States Securities Act of 1933, as amended, (b) the date on which neither
Champagne nor any of his affiliates shall remain a stockholder of the
Corporation, or (c) the consummation of an acquisition by Champagne or
Champagne's designee of shares representing more than 50% of the votes in the
Corporation, or an acquisition of all or substantially all of the Corporation's
assets.
6. Specific Enforcement. The parties agree and understand that monetary damages
cannot adequately compensate for a breach of this Agreement, that this Agreement
shall be specifically enforceable, and that any breach or threatened breach
shall be the proper subject of a temporary or permanent injunction or
restraining order.
7. Amendment. This Agreement may be amended only by a writing signed by the
parties hereto.
8. Notices. All notices and communications under this Agreement shall be in
writing and shall be: (a) delivered in person; or (b) sent by fax; or (c)
mailed, postage prepaid, either by certified mail, return receipt requested, or
by overnight express carrier, addressed in each case to the relevant party at
the address of such party shown on the Corporation's records.
9. Governing Law. This Agreement shall be governed by and interpreted under the
laws of the State of Delaware, without regard to its principles of conflicts of
laws.
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10. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original and all of
which shall constitute the same instrument, but only one of which need be
produced.
11. Separability; Severability. Any invalidity, illegality or limitation on the
enforceability of this Agreement with respect to any party shall not affect the
validity, legality or enforceability of this Agreement with respect to any other
party. If any provision of this Agreement is judicially determined to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not be affected or impaired.
[Intentionally left blank.]
21
IN WITNESS WHEREOF, the Corporation and the Stockholders have executed
this Agreement on the day and year first set above.
__________________________________
Sunir K. Kapoor
Chairman & CEO
WorkLife Solutions, Inc.
__________________________________ _______________________________
Paul Champagne Sunir K. Kapoor
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Name:_____________________________ Name:__________________________
Number, Class, Series of Shares: Number, Class, Series of Shares:
__________________________________ _______________________________
__________________________________ _______________________________
Name:_____________________________ Name:__________________________
Number, Class, Series of Shares: Number, Class, Series of Shares:
__________________________________ _______________________________
__________________________________ _______________________________
Name:_____________________________ Name:__________________________
Number, Class, Series of Shares: Number, Class, Series of Shares:
__________________________________ _______________________________