Exhibit (c)
OPTION AGREEMENT
OPTION AGREEMENT (this "Agreement"), dated as of April 3, 2002, by and
between Dice Inc. (f/k/a EarthWeb Inc.) (the "Company"), a Delaware corporation,
and Cragswood, Ltd. ("Cragswood"), a corporation organized under the laws of the
British Virgin Islands, RH Capital Profit Sharing Plan ("RH Profit Sharing"), a
profit sharing plan formed under the laws of New Jersey, RH Capital Associates
Number One, L.P. ("RH Number One"), a Delaware limited partnership, and Robert
Horwitz ("Mr. Horwitz" and, together with Cragswood, RH Profit Sharing and RH
Number One, the "Noteholders"), a natural person residing in Glen Rock, New
Jersey.
W I T N E S S E T H :
WHEREAS, the Company has outstanding $71,200,000 aggregate principal
amount of 7% Convertible Subordinated Notes due 2005 (the "Notes") that were
issued pursuant to the provisions of an Indenture (as in effect on the date
hereof, the "Indenture"), dated as of January 25, 2000, by and between the
Company and State Street Bank and Trust Company of California, N.A., as trustee;
WHEREAS, the Noteholders own, in the aggregate, $11,950,000 aggregate
principal amount of the outstanding Notes (the "Relevant Notes"); and
WHEREAS, the Company and the Noteholders desire to enter into this
Agreement in order to provide for certain rights and obligations of the parties
with respect to the Relevant Notes upon the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, IT IS AGREED:
1. Grant of Option. (a) The Noteholders hereby grant to the Company
the right (the "Option") to repurchase all (but not less than all) of the
Relevant Notes, at the purchase price set forth in paragraph (b) below, at any
time within five (5) Business Days (as hereinafter defined) after the occurrence
of a Change in Control (as such term is defined in paragraphs (a) and (b) of
Section 11.05 of the Indenture but not including paragraphs (c) and (d) of such
definition) (a "Qualifying Change in Control") of the Company and before the
Expiration Date (as hereinafter defined). The term "Business Day" means any day,
other than a Saturday or Sunday or a day on which banks located in New York City
are authorized or required by law to close.
(b) The aggregate purchase price for the Relevant Notes (the "Change
in Control Purchase Price") shall be an amount equal to the lesser of (i) 70% of
the aggregate principal amount of all of the Relevant Notes, together with
accrued but unpaid interest thereon to the Option Closing Date (as hereinafter
defined) (the "Minimum Payment"), plus 11.2693% of the aggregate of the Excess
Proceeds (as hereinafter defined) and (ii) 110% of the aggregate principal
amount of the Relevant Notes, together with accrued but unpaid interest thereon
to the Option Closing Date. The term "Excess Proceeds" means an amount equal to
(x) the sum of (A) the total amount of cash and the fair market value as of the
Option Closing Date of all other tangible or intangible property paid or
payable, or otherwise transferred (including by way of a dividend or other
distribution), directly or indirectly, to the Company or to the holders of the
Company's capital stock or other securities (including, without limitation,
options, but excluding the Relevant Notes and the Relevant Notes under the
Excluded Agreements (as hereinafter defined)) or to the persons set forth on
Schedule I attached hereto or any affiliate thereof, (B) the Minimum Payment and
the Minimum Payments under the Excluded Agreements and (C) the aggregate amount
of Indebtedness (as defined in the Indenture), whether or not contingent,
assumed or guaranteed by any third party, in each case in connection with the
Qualifying Change in Control, minus (y) the Threshold Amount (as specified on
Schedule II attached hereto). Notwithstanding the foregoing, whether or not 100%
of the capital stock of the Company is being purchased as part of the relevant
Qualifying Change in Control, the Change in Control Purchase Price shall be
computed as if 100% of such capital stock were purchased.
(c) Upon the occurrence of a Qualifying Change in Control, the Option
may be exercised by the earlier of (1) the fifth (5th) Business Day after the
occurrence of a Qualifying Change in Control or (2) the Expiration Date (the
"Final Exercise Date") by the Company delivering to the Noteholders a written
notice (the "Notice") indicating (i) that a Qualifying Change in Control has
occurred and briefly describing the same, (ii) the principal amount of Relevant
Notes to be repurchased, (iii) the Change in Control Purchase Price calculated
as set forth in paragraph (b) above and how such purchase price was calculated,
(iv) the repurchase date (the "Option Closing Date"), which shall not be less
than three (3) Business Days from the date of the Notice and (v) the account at
The Depository Trust Company ("DTC") to which the Relevant Notes should be
transferred. On the Option Closing Date, each of the Noteholders shall cause to
be transferred to the account at DTC specified in the Notice on the Option
Closing Date the Relevant Notes immediately upon payment by the Company on the
Option Closing Date by wire transfer of the Change in Control Purchase Price to
the account or accounts designated in writing by each of the Noteholders at
least two (2) Business Days prior thereto.
2. Fee. In consideration for the Noteholders entering into this
Agreement and granting the Option to the Company, the Company agrees to pay to
the Noteholders upon execution of this Agreement in cash a fee in the amount
specified opposite such Noteholder's name on Schedule III attached hereto by
wire transfer to the account, set forth below such Noteholder's name on Schedule
III (the "Relevant Account").
3. Expiration Date. (a) The Option shall expire on the date (the
"Expiration Date") that is the earliest of (i) thirty (30) days after the date
hereof if the Company has not prepared and circulated an offering document
seeking a Qualifying Change in Control to various bona fide potential purchasers
or has not delivered to the Noteholders written certification that the Company
has done so; (ii) ninety (90) days after the date hereof if the Company has not
executed signed confidentiality agreements in relation to a Qualifying Change in
Control with at least two (2) bona fide potential purchasers or has not
delivered to the Noteholders written certification that the Company has done so;
(iii) the occurrence of an Event of Default under Section 4.01(a), (b), (c), (g)
or (h) of the Indenture or a default in any material respect by the Company
under this Agreement; and (iv) six (6) months after the date hereof, provided,
that, the Expiration Date is not otherwise extended as set forth in paragraph
(b) below.
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(b) Extension Periods. The Expiration Date may be extended at the
election of the Company for a three (3) month period at no additional cost to
the Company provided that a valid and binding definitive agreement that will
result in a Qualifying Change in Control has been entered into by the Company
and a bona fide potential purchaser (and remains in full force and effect) but
the closing thereunder has not occurred solely as a result of any required
regulatory approval not having been obtained, provided that the Company delivers
written notice to such effect to the Noteholders prior to the date the Option
would otherwise expire. Unless the extension referred to in the preceding
sentence has been elected, the Expiration Date may be extended at the election
of the Company for a three (3) month period upon payment to each of the
Noteholders of a fee in the amount specified opposite such Noteholder's name on
Schedule IV attached hereto by wire transfer to the Relevant Account, provided
that a valid and binding definitive agreement that will result in a Qualifying
Change in Control has been entered into by the Company and a bona fide potential
purchaser (and remains in full force and effect). Notwithstanding the foregoing,
in no event shall the Expiration Date be extended beyond nine months after the
date hereof.
4. Representations and Warranties of the Company. The Company
represents and warrants to the Noteholders that: (i) the Company is a
corporation duly incorporated under the laws of Delaware; (ii) the Company has
the requisite power and authority to enter into this Agreement and to perform
its obligations hereunder; (iii) this Agreement constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and general principles of equity; and (iv) neither
the execution, delivery and performance of this Agreement by the Company nor the
repurchase of the Relevant Notes by the Company (a) will violate the Company's
organizational documents or any law, rule, regulation or order of any court or
governmental authority with jurisdiction or oversight with respect to the
Company, (b) will result in any breach of any provision of, or default under,
any agreement or instrument to which the Company is a party or (c) will require
the Company to obtain any consent, authorization or approval from any person or
authority. The Company makes no other representations or warranties with respect
to the transactions contemplated by this Agreement, other than as explicitly set
forth above.
5. Covenants of the Company. The Company covenants and agrees as
follows:
(a) that the Company will cause the representations and warranties set
forth in Section 4 above to continue to be true at all times until the
Expiration Date;
(b) that the Company will file with the Securities and Exchange
Commission a Current Report on Form 8-K describing the terms of this Agreement
and providing a copy thereof as an exhibit as soon as practicable after the date
hereof but in any event no later than two (2) Business Days following the close
of business on the date hereof;
(c) that the Company will amend this Agreement to give the Noteholders
the benefit of any provision in any agreement (other than the Excluded
Agreements) entered into on or prior to the Expiration Date by the Company with
any other holder of the Notes concerning the purchase of Notes, if so requested
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by the Noteholders. The Company shall promptly: (x) notify the Noteholders if it
enters into any such agreement and (y) provide a true and complete copy thereof
to the Noteholders. The term "Excluded Agreements" means the Option Agreement,
dated as of the date hereof, by and among the Company, Elliott Associates, L.P.
and Elliott International, L.P. and the Option Agreement, dated as of the date
hereof, by and among the Company, Merced Partners Limited Partnership and
Tamarack International, Ltd., but without giving effect to any subsequent
amendments or modifications thereto; and
(d) that the Company will not approve or effect any dividend or other
distribution to holders of its capital stock, or any purchase of capital stock,
on or prior to the Expiration Date, except in connection with a Qualifying
Change in Control.
6. Representations and Warranties of the Noteholders. Each of the
Noteholders jointly and severally represents and warrants to the Company that:
(i) the Company will receive valid title to the Relevant Notes of the
Noteholders repurchased by it, free and clear of all liens and encumbrances,
upon the consummation of the transactions contemplated by this Agreement; (ii)
each of the Noteholders is the sole beneficial owner of all of the Relevant
Notes owned by it in the aggregate principal amounts set forth on Schedule V
attached hereto; (iii) Cragswood is a corporation duly formed under the laws of
the British Virgin Islands, RH Profit Sharing is a profit sharing plan duly
formed under the laws of New Jersey, RH Number One is a limited partnership duly
formed under the laws of Delaware and Mr. Horwitz is a natural person resident
in Glen Rock, New Jersey; (iv) each of the Noteholders has the requisite power,
authority and, in the case of Mr. Horwitz, legal capacity to enter into this
Agreement and to perform its obligations hereunder; (v) this Agreement
constitutes a valid and binding obligation of each of the Noteholders,
enforceable against each of the Noteholders in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general principles of equity; and (vi) neither the execution,
delivery and performance of this Agreement by any of the Noteholders nor the
repurchase of any of the Noteholders' Relevant Notes by the Company (a) will
violate any of the Noteholders' organizational documents, as the case may be, or
any law, rule, regulation or order of any court or governmental authority with
jurisdiction or oversight with respect to any of the Noteholders, (b) will
result in any breach of any provision of, or default under, any agreement or
instrument to which any of the Noteholders is a party or (c) will require any of
the Noteholders to obtain any consent, authorization or approval from any person
or authority. None of the Noteholders makes any other representations or
warranties with respect to the transactions contemplated by this Agreement,
other than as explicitly set forth above.
7. Covenants of the Noteholders. Each of the Noteholders jointly and
severally covenants and agrees as follows:
(a) that each of the Noteholders will cause the representations and
warranties set forth in Section 6 above to continue to be true at all times
until the Expiration Date, subject to the Noteholders' right to sell, transfer,
assign or otherwise convey any of the Relevant Notes pursuant to the provisions
of paragraph (b) below;
(b) that each of the Noteholders will not, until the Expiration Date,
sell, transfer, assign or otherwise convey any of the Relevant Notes or any
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interest therein to any party unless such party agrees in writing to be bound by
the provisions of this Agreement, including, without limitation, the covenants
applicable to the Noteholders contained herein; and
(c) that, upon the occurrence of a Qualifying Change in Control, each
of the Noteholders will not exercise its right pursuant to Section 11.01 of the
Indenture to require the Company to repurchase the Relevant Notes owned by it
unless the Company has not exercised the Option by the Final Exercise Date.
8. Expenses. Each party shall be responsible for its own fees,
disbursements, costs and expenses incident to the performance of its obligations
hereunder. Notwithstanding the foregoing, the Noteholders shall bear the costs
of all transfer, stamp or similar taxes or duties incident to the repurchase and
delivery of the Relevant Notes to the Company contemplated hereby. The
provisions of this Section 8 shall survive the completion of the repurchase and
delivery of the Relevant Notes to the Company contemplated hereby.
9. Binding Nature. This Agreement, including, without limitation, the
representations, warranties and covenants contained herein, shall be binding on
the parties hereto and their respective successors and permitted assigns.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one agreement binding upon all of the parties hereto.
11. Amendments and Waivers. No amendment of any provision of this
Agreement shall be effective unless it is in writing and is signed by the
Company and the Noteholders. No waiver of any provision of this Agreement shall
be effective unless it is in writing and is signed by the party against which
enforcement is sought, and any such waiver shall be effective only for the
specific instance and specific purpose it is given and shall not constitute a
commitment to grant any other, further or continuing waiver.
12. Cumulative Remedies. The rights and remedies of the parties hereto
are deemed to be cumulative, and not exclusive, and may be exercised singly,
severally or jointly. No delay in exercising any right or remedy hereunder shall
constitute a waiver of such right or remedy.
13. Severability. If any one or more of the provisions contained in
this Agreement shall be deemed by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, the validity and
enforceability of the remaining provisions contained herein shall not in any way
be impaired.
14. Survival. All of the agreements, representations, warranties and
covenants of the parties hereto shall survive the execution and delivery of this
Agreement.
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15. Notices. (a) Any notice or notification in any form to be given
under this Agreement shall be delivered in person or sent by priority mail
(postage prepaid), facsimile or telephone (subject in the case of a
communication by telephone to confirmation by priority mail or facsimile)
addressed to:
In the case of the Company:
Dice Inc.
3 Park Avenue
New York, NY 10016
Tel: (212) 725-6550
Fax: (212) 725-9127
Attention: Brian Campbell
with a copy to (which shall not constitute notice):
White & Case LLP
1155 Avenue of the Americas
New York, NY 10036
Tel: (212) 819-8314
Fax: (212) 354-8113
Attention: Maureen Brundage, Esq.
In the case of the Noteholders:
RH Capital Associates LLC
55 Harristown Road
Glen Rock, New Jersey 07452
Tel: (201) 444-2850
Fax: (201) 444-1469
Attention: Rob Horwitz
with a copy to (which shall not constitute notice):
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Telephone: (212) 574-1200
Fax: (212) 480-8421
Attention: Jack Rigney, Esq.
(b) Any such notice shall take effect (i) in the case of delivery, at
the time of delivery, (ii) in the case of telephone, at the time of confirmation
and (iii) in the case of priority mail or facsimile, at the time of dispatch.
16. Entire Agreement. This Agreement embodies the final, entire
agreement among the Company and the Noteholders with respect to the subject
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matter hereof and supersedes all prior agreements, representations and
understandings, whether written or oral, relating to this Agreement, and may not
be contradicted or varied by evidence of prior, contemporaneous or subsequent
oral agreements or discussions.
17. No Third Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their successors and permitted assigns, and
nothing herein expressed or implied shall give or be construed to give any
person or entity, other than the parties hereto and such successors and
permitted assigns, any legal or equitable rights hereunder.
18. Descriptive Headings. The headings and captions used in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
19. Choice of Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of
New York or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of New York.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or has caused this Agreement to be executed by its respective duly
authorized officer, in any event as of the date first above written.
DICE INC.
By:
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Name:
Title:
CRAGSWOOD, LTD.
By: RH Capital Associates LLC, its
Investment Adviser
By:
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Name: Robert Horwitz
Title: Managing Member
RH CAPITAL PROFIT SHARING PLAN
By:
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Name: Robert Horwitz
Title: Trustee
RH CAPITAL ASSOCIATES
NUMBER ONE, L.P.
By: RH Capital Associates LLC, its
General Partner
By:
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Name: Robert Horwitz
Title: Managing Member
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ROBERT HORWITZ
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