Exhibit 4.10
Form 10-K 2001, Amendment No. 1
Headway Corporate Resources, Inc.
File No. 1-16025
VOTING AGREEMENT
VOTING AGREEMENT, dated as of April 18, 2002 (this "Agreement"), by and
among Headway Corporate Resources, Inc., a Delaware corporation (the "Company"),
the holders of the Company's Series G Convertible Preferred Stock who are
signatories hereto (the "Preferred Stockholders") and the holders of the
Company's common stock who are signatories hereto (the "Common Stockholders")
for their mutual benefit and for the benefit of Bank of America, N.A., in its
capacity as agent for the Lenders (as defined below).
R E C I T A L S:
WHEREAS, the Company, the Preferred Stockholders and State Street Bank and
Trust Company, N.A. (the "Trustee") have entered into that certain Second
Limited Waiver dated as of the date hereof (the "Second Limited Waiver")
relating to that certain Indenture dated as of March 19, 1998, as amended,
modified, supplemented or restated on or prior to the date hereof, by and
between the Company and the Trustee (capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to them in the Second
Limited Waiver);
WHEREAS, the Company, the Agent and the Lenders (as defined therein) are
parties to that certain Amended and Restated Credit Agreement dated as of the
date hereof (the "Amended and Restated Credit Agreement");
WHEREAS, the Common Stockholders own beneficially and of record, in the
aggregate, 3,569,962 shares of the common stock, par value $.0001 per share (the
"Common Stock"), of the Company (for purposes of this Agreement, "beneficial
ownership" shall have the meaning ascribed to such term in Regulation 13d-3 of
the Securities Exchange Act of 1934, as amended); and
WHEREAS, it is a condition to the effectiveness of the Second Limited
Waiver that each of the Common Stockholders enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1). Voting. Each of the Common Stockholders agrees to vote, or cause to be
voted, all shares of Common Stock beneficially owned by such Common Stockholder,
including, without limitation, that number of shares of Common Stock set forth
opposite such Common Stockholder's name on Schedule A annexed hereto, and all
other shares of Common Stock or other voting securities of the Company with
respect to which such Common Stockholder has the ability to exercise voting
discretion, for the approval of Common Stockholder Approval (as defined in the
Second Limited Waiver) and any other action reasonably necessary in connection
therewith.
2). Term. This Agreement shall terminate upon the approval of the matters
set forth in Section 1 above.
3). Representations, Warranties and Covenants.
(a) Each of the Common Stockholders hereby, severally and not jointly,
represents and warrants as follows:
(i) Except as otherwise disclosed to the Preferred Stockholders
in a writing contemporaneously delivered herewith, and specifically
referencing this Agreement, such Common Stockholder has the exclusive
right to vote the shares of Common Stock set forth on Schedule A
hereto, free and clear of all liens, charges and encumbrances
whatsoever. Except as set forth on Schedule A, such Common Stockholder
does not beneficially own any shares of Common Stock or other voting
securities of the Company.
(ii) Such Common Stockholder has all necessary power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of such
Common Stockholder. This Agreement has been duly executed and
delivered by such Stockholder and constitutes the legal, valid and
binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
(iii) No consent, approval, order or authorization of any third
party (including any federal, state or local governmental authority)
is required by or with respect to such Common Stockholder to validly
execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
(b) Each of the Common Stockholders agrees that, until this Agreement
has been terminated, such Common Stockholder will not sell, transfer,
assign or otherwise dispose of any of his/its shares of Common Stock,
unless the proposed transferee of such shares agrees to become a signatory
to this Agreement, or take any other action that would impair, hinder or
adversely affect his/its ability to perform his/its obligations hereunder.
4). Further Assurances. Each party hereto shall perform such further acts
and execute such further documents as may be required to carry out the
provisions of this Agreement.
5). Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and the Agent and their respective heirs, personal
representatives, successors and assigns.
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6). Specific Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that each party shall be entitled to an injunction or
injunctions to prevent any breaches of this Agreement and to enforce
specifically the terms and provisions hereof or thereof in any court of the
United States or any state thereof having jurisdiction, this being in addition
to any other remedy to which he/it is entitled at law or in equity, and the
parties hereto waive any requirement to post any bond as a condition to seeking
or obtaining equitable relief.
7). Notices. Any notice, demand, request, waiver, or other communication
under this Agreement shall be in writing (including facsimile or similar
writing) and shall be deemed to have been duly given (a) on the date of service
if personally served, (b) on the third day after mailing if mailed to the party
to whom notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid, (c) on the next day after sending, if sent by
overnight service, or (d) on the date sent if sent by facsimile, to the parties
at the following addresses or facsimile numbers with a copy sent by mail as
aforesaid on the same date (or at such other address or facsimile number for a
party as shall be specified by like notice):
If to the Company:
Headway Corporate Resources, Inc.
317 Madison Avenue, 3rd Floor
New York, NY 10022
Attention: Ms. Philicia G. Levinson,
Senior Vice President and Chief Financial
Officer
Fax: (212) 672-6699
with a copy to:
Salans Hertzfeld Heilbronn Christy &
Viener
Rockefeller Center
620 Fifth Avenue
New York, New York 10020
Attention: Richard B. Salomon, Esq.
Fax: (212) 632-5555
and:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153-0119
Attn: Ted S. Waksman, Esq.
Fax: (212) 310-8007
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If to the Agent, to its address as set forth in the Amended and Restated
Credit Agreement.
If to any Common Stockholder or Preferred Stockholder, at his or its
address as set forth in the records of the Company.
8). Severability. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, in whole or in part, the validity of the
remaining provisions shall not be affected and the remaining portion of any
provision held to be invalid, illegal or unenforceable shall in no way be
affected, prejudiced or disturbed thereby.
9). Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall constitute a
single agreement.
10). Governing Law. This Agreement shall be construed in accordance with,
and governed by, the internal laws of the State of New York, without giving
effect to the principles of conflict of laws thereof. Any legal action, suit or
proceeding arising out of or relating to this Agreement may be instituted in any
state or federal court located within the County of New York, State of New York,
and each party hereto agrees not to assert, by way of motion, as a defense, or
otherwise, in any such action, suit or proceeding, any claim that it is not
subject personally to the jurisdiction of such court or that such court is an
inconvenient forum, that the venue of the action, suit or proceeding is improper
or that this Agreement or the subject matter hereof may not be enforced in or by
such court. Each party hereto further irrevocably submits to the jurisdiction of
any such court in any such action, suit or proceeding.
11.) Agent Intended Third Party Beneficiary. The parties hereto expressly
acknowledge and agree that Lenders have relied upon the execution of this
Agreement as a material inducement to their execution of the Amended and
Restated Credit Agreement, and the parties further acknowledge and agree that
execution of such agreement by the Lenders is of material benefit to the parties
hereto. Accordingly, it is expressly agreed that the Agent shall be a third
party beneficiary of this Agreement, entitled to enforce this Agreement, for the
benefit of the Lenders, in the same manner and to the same extent as if Agent
were a signatory to this Agreement having performed all of its obligations
hereunder. However, the parties hereto agree that Agent has no obligations under
this Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
HEADWAY CORPORATE RESOURCES, INC.
By: /s/
PREFERRED STOCKHOLDERS:
GARMARK PARTNERS, L.P. BANC OF AMERICA
SECURITIES LLC, successor in
By: /s/ interest to Nationsbanc Montgomery
Securities, LLC
By: /s/
MOORE GLOBAL INVESTMENT, LTD. REMINGTON INVESTMENT
STRATEGIES, L.P.
By: /s/
By: /s/
AGENT:
BANK OF AMERICA, N.A.
By: /s/
COMMON STOCKHOLDERS:
/s/ Gary S. Goldstein
/s/ Barry S. Roseman
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/s/ G. Chris Andersen
/s/ Ehud D. Laska
/s/ Richard B. Salomon
/s/ Alicia Lazaro
/s/ Philicia G. Levinson
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SCHEDULE A
NUMBER OF SHARES OF
NAME COMMON STOCK
-------------------- -------------------
Gary S. Goldstein 1,709,005
Barry S. Roseman 383,629
G. Chris Andersen 956,965
Ehud D. Laska 84,580
Richard B. Salomon 54,965
Alicia Lazaro 314,197
Philicia G. Levinson 66,621
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