EXHIBIT 10.2
ADDITIONAL REDEMPTION AGREEMENT
This Additional Redemption Agreement (the "Agreement") is made as of
February 5, 1999 by and between Korn/Ferry International, a California
corporation (the "Company") and Xxxxxxx X. Xxxxx ("Ferry").
R E C I T A L S
WHEREAS, pursuant to certain Purchase Agreements between the Company
and certain shareholders of the Company (the "Sellers") dated as of December 31,
1994 (collectively, the "1994 Purchase Agreement"), the Sellers agreed to have
certain shares of the Company's common stock, no par value (the "Common Stock"),
redeemed by the Company in an integrated fixed redemption plan initiated by the
Company that required the redemption of a portion of the holdings of any
shareholder whose aggregate ownership of securities exceeded a certain level of
equity ownership in the Company (the "Redemption");
WHEREAS, pursuant to the Redemption, 304,223 shares of Common Stock
owned by Ferry were redeemed by the Company (the "Redeemed Stock");
WHEREAS, the redemption price consisted of (i) a fixed amount of $7.29
per share of Redeemed Stock (the "Fixed Redemption Amount"), (ii) a contingent
additional amount (the "Additional Redemption Amount") payable if the Company
engaged in any extraordinary transaction, such as a public offering of the
Common Stock of the Company at any time prior to December 31, 2004 (an "Initial
Public Offering") and (iii) one share of Series A Preferred Stock for each 100
shares of Common Stock redeemed;
WHEREAS, the Fixed Redemption Amount resulted in a total payment of
$2,217,785.60, with $369,484.77 paid in cash and the balance of $1,848,300.90
paid in the form of a promissory note in the principal amount of $1,826,124.72
(the "Fixed Redemption Promissory Note") and $22,176.18 in the form of 3,042
shares of Series A Preferred Stock at $7.29 per share;
WHEREAS, in the event of an Initial Public Offering, the Additional
Redemption Amount per share was defined in the 1994 Purchase Agreement to be an
amount equal to the amount Ferry would have received in an Initial Public
Offering had the Redeemed Stock not been redeemed in the Redemption, reduced by
the Fixed Redemption Amount plus 8.5% per annum accrued interest;
WHEREAS, because the Company's current balance of cash and cash
equivalents is not sufficient to pay the aggregate Additional Redemption Amount
and therefore a substantial amount of the proceeds from the Initial Public
Offering would have been required to pay the total aggregate Additional
Redemption Amount rather than providing new capital for the Company, each Seller
has agreed with the Company to reduce the Additional Redemption Amount otherwise
required to be paid to such Seller by 30.25% (the "Negotiated Adjustment
Percentage");
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WHEREAS, the Company and Ferry desire to enter into this Agreement to
reduce the Additional Redemption Amount otherwise required to be paid to Ferry
by the Negotiated Adjustment Percentage;
WHEREAS, concurrent with the transactions contemplated in this
Agreement and as part of the Redemption, all shares of Series A Preferred Stock
issued pursuant to the 1994 Purchase Agreement will be retired in an amount
equal to $7.29 per share of Series A Preferred Stock plus all accrued and unpaid
dividends to date (the "Preferred Stock Amount"); and
WHEREAS, upon completion of the transactions contemplated in this
Agreement and the retirement of all shares of Series A Preferred Stock, all
obligations of the Company and Ferry in respect of the Redemption will have been
satisfied.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and Ferry hereby agree as follows:
SECTION 1
PAYMENT; MUTUAL RELEASE
1.1 Payment. Subject to the terms and conditions contained herein,
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the Company agrees to pay Ferry at the time and manner set forth in Section 4
the sum of (i) the outstanding principal balance of the Fixed Redemption
Promissory Note at the Closing (as defined in Section 4.1) plus all accrued and
unpaid interest thereon; (ii) the Preferred Stock Amount and (iii) an amount
equal to the product of 1,216,892 shares (after giving effect to the 4 to 1
stock split) times the difference between (a) the initial price of the shares of
Common Stock sold by the Underwriters to the public in the Initial Public
Offering (the "Initial Offering Price") times 0.6975 and (b) the Fixed
Redemption Amount plus 8.5% per annum accrued interest since the date of the
Redemption (collectively, the "Payment Amount") as payment in full of (x) the
Fixed Redemption Promissory Note, (y) the retirement of the Series A Preferred
Stock; and (z) the Additional Redemption Amount owed to Ferry under the 1994
Purchase Agreement.
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SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Ferry as follows:
2.1 Organization and Powers. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
California and has all requisite corporate power and authority to own and
operate its properties and assets, to carry on its business as presently
conducted and as now proposed to be conducted and to enter into this Agreement
and carry out the transactions contemplated hereby.
2.2 Authorization and Binding Obligation. The execution, delivery
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and performance of this Agreement, including, but not limited to, the payment of
the Payment Amount, have been duly authorized by all necessary corporate action
on the part of the Company. This Agreement is the legally valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally.
2.3 Compliance with Other Instruments. The Company is not in
---------------------------------
violation of any term of its Articles of Incorporation or Bylaws, or in any
material respect of any term or provision of any material mortgage,
indebtedness, indenture, contract, agreement, instrument, judgment or decree,
and, to the best of its knowledge, is not in violation of any order, statute,
rule or regulation applicable to the Company where such violation would
materially and adversely affect the Company. The execution, delivery and
performance of and compliance with this Agreement, and the payment of the
Payment Amount, have not resulted and will not result in any violation of, or
conflict with, or constitute a default under, the Company's Articles of
Incorporation or Bylaws or any of its material agreements nor result in the
creation of any mortgage, pledge, lien, encumbrance or charge upon any material
portion of the properties or assets of the Company.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF FERRY
Ferry hereby represents and warrants to the Company as follows:
3.1 Experience. Ferry, through his authorized representative or
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otherwise, has experience in evaluating the fairness of the Negotiated
Adjustment Percentage to the Additional Redemption Amount and the terms of this
Agreement, and is capable of evaluating the merits and risks of this Agreement
and has the capacity to protect his own interest in entering into this Agreement
with the Company.
3.2 Authorization and Binding Obligation. Ferry is duly authorized
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to execute, deliver and perform this Agreement. This Agreement is the legally
valid and binding obligation of Ferry, enforceable against him in accordance
with its terms, except as enforcement
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may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or limiting creditors' rights
generally.
3.3 Compliance with Other Instruments. The execution of this
---------------------------------
Agreement by Ferry does not, and the performance by Ferry of his obligations
hereunder will not, constitute a violation of, conflict with or result in a
default under, any contract, commitment, agreement, understanding, arrangement
or restriction of any kind to which Ferry is bound.
3.4 No Prior Transfer. Ferry has not transferred, assigned or
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pledged all, or any part, of his rights under the 1994 Purchase Agreement, and
the release by Ferry of his rights under the 1994 Purchase Agreement will
constitute a full and complete release of any right owed under the 1994 Purchase
Agreement, subject to Section 1546 of the California Civil Code.
3.5 Review of Appraisals. Ferry has reviewed the appraisals of the
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fair market value of the Common Stock of the Company as of April 30, 1998, and
June 30, 1998 prepared by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx.
SECTION 4
CLOSING
4.1 Closing. The closing of the transaction contemplated in Section
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1 of this Agreement (the "Closing") will take place at the offices of the
Company, 9:00 a.m. two business days after the consummation of the Initial
Public Offering.
4.2 Payment by Wire Transfer. At the Closing, the Company will pay
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the Payment Amount by wire transfer to an account designated by Ferry.
4.3 Delivery of Executed Release. Subject to the terms and
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conditions contained herein, at the Closing, each of Ferry and the Company agree
to execute and deliver a mutual release, in the form attached hereto as Exhibit
A (the "Mutual Release").
4.4 Payment of Preferred Stock Amount. The Company shall pay Ferry
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the Preferred Stock Amount upon the retirement of the Series A Preferred Stock.
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SECTION 5
CONDITIONS PRECEDENT TO CLOSING
5.1 Conditions Precedent to Closing. The obligations of the Company
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and Ferry under this Agreement will be subject to the fulfillment of each and
all of the following conditions at or before the Closing, each of which is
individually deemed material.
5.2 Representations and Warranties. The representations and
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warranties made by the Company and Ferry will be true and correct on and as of
the Closing to the same extent and with the same effect as if made on and as of
the Closing.
5.3 Consummation of Initial Public Offering. The Initial Public
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Offering of the Common Stock of the Company will have been consummated.
SECTION 6
TERMINATION
6.1 Termination. If the Closing does not occur on or before June 30,
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1999, this Agreement will terminate.
SECTION 7
MISCELLANEOUS
7.1 Governing Law. This Agreement will be governed and construed in
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all respects in accordance with the laws of the State of California.
7.2 Successors and Assigns. Except as otherwise provided herein, the
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provisions hereof will inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
7.3 Entire Agreement; Amendment. This Agreement and the other
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documents delivered pursuant hereto constitute the full and entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof, and no party shall be liable or bound to any other party in any manner
by any warranties, representations or covenants except as specifically set forth
herein or therein. Except as expressly provided herein, neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
7.4 Notices, etc. All notices and other communications required or
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permitted hereunder will be in writing and will be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by messenger, addressed
to the address set forth on the signature page hereto, or at such other address
as a party shall have furnished the other party by notice given in the above
manner.
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Each such notice or other communication will for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or
three (3) business days after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and
mailed as aforesaid.
7.5 Expenses. If any action at law or in equity is necessary to
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enforce or interpret the terms of this Agreement, the prevailing party will be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
7.6 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which may be executed by less than all of the parties,
each of which will be enforceable against the party actually executing such
counterpart, and all of which together will constitute one instrument.
7.7 Severability. In the event that any provision of this Agreement
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becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement will continue in full force and effect
without said provision.
7.8 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
7.9 Legal Counsel. In entering into this Agreement, the parties
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represent that they have relied upon the advice of their respective attorneys,
who are attorneys of their own choice, and that the terms of this Agreement have
been completely read and explained to them by their attorneys, and that those
terms are fully understood and voluntarily accepted by them.
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IN WITNESS WHEREOF, the parties hereto have executed this Additional
Redemption Agreement as of the date first above written.
"COMPANY"
KORN/FERRY INTERNATIONAL
By: /s/ Xxxxxxxxx S.C.S. Xxxxxx
--------------------------------
Name: Xxxxxxxxx S.C.S. Xxxxxx
Title: Chief Financial Officer
and Executive Vice President
Notice Address: Korn/Ferry International
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
"FERRY"
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Notice Address: c/o Korn/Ferry International
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
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MUTUAL RELEASE OF CLAIMS
This Mutual Release of Claims (this "Mutual Release") is made as of
February 5, 1999 by and between Korn/Ferry International, a California
corporation (the "Company") and Xxxxxxx X. Xxxxx ("Ferry").
R E C I T A L S
WHEREAS, pursuant to certain Purchase Agreements between the Company
and certain shareholders of the Company (the "Sellers") (collectively, the "1994
Purchase Agreement"), the Sellers agreed to have certain shares of the Company's
common stock, no par value (the "Common Stock"), redeemed by the Company in an
integrated fixed redemption plan initiated by the Company that required the
redemption of a portion of the holdings of any shareholder whose aggregate
ownership of securities exceeded a certain level of equity ownership in the
Company (the "Redemption");
WHEREAS, the Company and Ferry have entered into the Additional
Redemption Agreement dated as of February 5, 1999 (the "Additional Redemption
Agreement") with respect to the amounts required to be paid to Ferry to complete
the Redemption; and
WHEREAS, upon completion of the transactions contemplated in the
Additional Redemption Agreement and the retirement of all shares of Series A
Preferred Stock of the Company, all obligations of the Company and Ferry in
respect of the Redemption will have been satisfied.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company and Ferry hereby agree as follows:
1. Release of the Company by Ferry. Except for the obligations of
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the Company set forth in the Additional Redemption Agreement, Ferry, on behalf
of himself and his representatives, successors and assigns, completely releases
and forever discharges the Company and each of its predecessors, successors,
assigns, affiliates, agents, directors, officers, employees, representatives and
attorneys of such companies, and all persons acting by, through, under or in
concert with any of them (collectively, referred to as "Company Releasees"),
from any and all demands, charges, complaints, liabilities, obligations,
promises, agreements, damages, suits, costs, losses debts and expenses
(including attorneys' fees and costs actually incurred) of any nature, known or
unknown (collectively, "Claims"), which Ferry now has, or which Ferry at any
time had, or which Ferry at any time may have, against each or any of the
Company Releasees, arising out of or related to any act, omission, or other
thing relating to the subject matter of the Additional Redemption Agreement
which existed or occurred on or before the date of the execution of this Mutual
Release by Ferry.
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2. Release of Ferry by the Company. Except for the obligations of
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Ferry set forth in the Additional Redemption Agreement, the Company, on behalf
of itself and its representatives, successors, assigns and affiliates,
completely releases and forever discharges Ferry and each of his predecessors,
successors, assigns, agents, employees and representatives, and all persons
acting by, through, under or in concert with any of them (collectively, referred
to as "Ferry Releasees") from any and all Claims which the Company now has, or
which the Company at any time had, or which the Company at any time may have,
against each or any of the Ferry Releasees arising out of or related to any act,
omission, or other thing relating to the subject matter of the Additional
Redemption Agreement which existed or occurred on or before the date of the
execution of this Mutual Release by the Company.
3. Release of Unknown Claims. Ferry and the Company waive and
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relinquish any and all rights or benefits which he or it may now have under the
provisions of Section 1542 of the California Civil Code, which provide as
follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
Notwithstanding the provisions of Section 1542, Ferry and the Company
expressly acknowledge that this Mutual Release is intended to include in its
effect, without limitation, all Claims which Ferry and the Company do not know
of or suspect to exist in his or its favor at the time of signing this Mutual
Release, and that this Mutual Release contemplates the release of any such
Claims.
4. Release Not Affected by Later Discovery. Ferry and the Company
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acknowledge that he or it may hereafter discover Claims or facts in addition to
or different from those which he or it now know or believe to exist relating to
the subject matter of the Additional Redemption Agreement and which, if known or
suspected at the time of executing this Mutual Release, may have materially
affected this settlement. Nevertheless, Ferry and the Company waive any right,
Claim or cause of action that might arise as a result of such different or
additional Claims or facts. Ferry and the Company acknowledge that they and it
understand the significance and consequence of such a release and specific
waiver of Section 1542 of the California Civil Code. Ferry and the Company
further waive and relinquish all other statutes, rights, remedies and benefits
of all other jurisdiction, state or federal, which are of the same or similar
import or effect as Section 1542 of the California Civil Code.
5. No Litigation. Ferry and the Company confirm that he and it have
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not and will not file any charge, Claim, suit or action against any of the
Company Releasees or Ferry Releasees with any court of law or before any
federal, state, or administrative agency based on the matters released in this
Mutual Release. If any court of law, federal, state or administrative agency
assumes jurisdiction of any such charge, Claim , suit or action on behalf of
Ferry or the Company, Ferry or the Company, as applicable, will direct that
agency or court to withdraw from or dismiss the matter with prejudice.
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IN WITNESS WHEREOF, the parties hereto have executed this Mutual
Release as of the date first above written.
"COMPANY"
KORN/FERRY INTERNATIONAL
By: /s/ Xxxxxxxxx S.C.S. Xxxxxx
-------------------------------
Name: Xxxxxxxxx S.C.S. Xxxxxx
Title: Chief Financial Officer
and Executive Vice President
Notice Address: Korn/Ferry International
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
"FERRY"
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Notice Address: c/o Korn/Ferry International
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
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