Investment Agreement - Career Holdings Inc., Tribune Co. and KnightRidder.com Inc.
<PAGE> 1
------------------------------------------------------------------------------
INVESTMENT AGREEMENT
DATED AS OF
JULY 16, 2000
------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE I
<S> <C>
Sale of Shares................................................................1
SECTION 1.1 Amendment to Certificate Of Incorporation..................1
SECTION 1.2 Sale of Common Stock.......................................1
SECTION 1.3 Closing....................................................1
SECTION 1.4 Additional Documents.......................................2
ARTICLE II
Representations and Warranties of the Company.................................2
SECTION 2.1 Organization, Qualifications and Power.....................2
SECTION 2.2 Authorization of Agreements; No Conflicts..................2
SECTION 2.3 Validity...................................................2
ARTICLE III
Representations and Warranties of Purchasers..................................2
SECTION 3.1 Investor Qualifications....................................3
SECTION 3.2 Investment.................................................3
SECTION 3.3 Rule 144...................................................3
SECTION 3.4 No Public Market...........................................3
SECTION 3.5 Authorization..............................................3
SECTION 3.6 Brokers or Finders.........................................3
SECTION 3.7 Organization and Power.....................................4
ARTICLE IV
Miscellaneous.................................................................4
SECTION 4.1 Compliance with Covenants and Performance of Obligations...4
SECTION 4.2 Amendments.................................................4
SECTION 4.3 Survival of Representations and Warranties.................4
SECTION 4.4 Successors and Assigns.....................................4
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
SECTION 4.5 Severability...............................................4
SECTION 4.6 Descriptive Headings.......................................4
SECTION 4.7 Notices....................................................4
SECTION 4.8 Third Party Beneficiaries..................................6
SECTION 4.9 Governing Law..............................................6
SECTION 4.10 Schedules and Exhibits....................................6
SECTION 4.11 Final Agreement...........................................6
SECTION 4.12 Execution in Counterparts.................................6
SECTION 4.13 JURISDICTION; VENUE; FORUM NON CONVENIENS.................6
SECTION 4.14 WAIVER OF JURY TRIAL......................................7
SECTION 4.15 Termination...............................................7
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
Exhibit A Closing
Exhibit B Form of Amended and Restated Certificate of Incorporation
Exhibit C Form of Registration Rights Agreement
Exhibit D Form of Amended and Restated Stockholders' Agreement
</TABLE>
-ii-
<PAGE> 4
INVESTMENT AGREEMENT
This Investment Agreement (this "Agreement") dated as of July 16, 2000 is
among Career Holdings, Inc., a Delaware corporation (the "Company"), Tribune
Company, a Delaware corporation ("TC"), and KnightRidder.com, Inc., a Delaware
corporation ("KR" and together with TC, the "Purchasers").
RECITALS
WHEREAS, in order to finance the Company's growth, the Company desires to
issue and sell to the Purchasers, and the Purchasers desire to purchase from
the Company, as set forth on Exhibit A hereto, an aggregate of 30,750,000
shares (the "Shares") of the authorized and unissued shares of Common Stock,
par value $.01 per share, of the Company (the "Common Stock"), all on the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
SALE OF SHARES
SECTION 1.1 AMENDMENT TO CERTIFICATE OF INCORPORATION. Purchasers agree
that, prior to the Closing (as defined below), they will cause the Certificate
of Incorporation of the Company to be amended and restated in the form attached
hereto as Exhibit B.
SECTION 1.2 SALE OF COMMON STOCK. Subject to the terms and conditions set
forth herein and in reliance upon the representations and warranties of the
Company set forth herein, the Company agrees to issue and sell to each
Purchaser, free and clear of any liens, claims, charges and encumbrances
whatsoever, and each Purchaser agrees to purchase from the Company at the
Closing (as defined below) the number of shares of Common Stock for the
purchase price set forth opposite such Purchaser's name in Exhibit A hereto.
The Closing shall take place at the offices of Sidley & Austin, Bank One Plaza,
10 S. Dearborn Street, Chicago, Illinois.
SECTION 1.3 CLOSING. The Closing shall take place on or prior to the date
that is two business days prior to the date that the shares of common stock,
par value $.001 per share ("Target Common Stock"), of CareerBuilder, Inc., a
Delaware corporation ("CareerBuilder"), are required to be accepted for payment
by CB Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary
of the Company ("Sub") pursuant to Sub's offer to purchase all outstanding
shares of Target Common Stock commenced pursuant to the Agreement and Plan of
Merger dated July 16, 2000 (the "Merger Agreement") among the Company, Sub and
CareerBuilder (the "Closing"). At the Closing, the Company will issue and sell
to each Purchaser, against the payment by such Purchaser of the purchase price
therefor by wire transfer of immediately available funds to an account which
has been designated in writing by the
<PAGE> 5
Company, duly registered in the name of the Purchaser, the number of Shares set
forth opposite such Purchaser's name on Exhibit A hereto.
SECTION 1.4 ADDITIONAL DOCUMENTS. At the Effective Time (as defined in
the Merger Agreement), the Company and Purchasers agree to execute and deliver
the Registration Rights Agreement in the form attached hereto as Exhibit C and
the Amended and Restated Stockholders' Agreement in the form attached hereto as
Exhibit D.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchasers that:
SECTION 2.1 ORGANIZATION, QUALIFICATIONS AND POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. The Company has the corporate power and
authority to own and hold its properties and to carry on its business as now
conducted and as proposed to be conducted. The Company has the corporate power
and authority to execute, deliver and perform this Agreement.
SECTION 2.2 AUTHORIZATION OF AGREEMENTS; NO CONFLICTS. (a) The execution,
delivery and performance by the Company of this Agreement and the issuance and
sale of the Shares (i) have been duly authorized by all requisite corporate
action, (ii) does not violate (w) any provision of law, (x) any order of any
court or other agency of government, (y) the Company's certificate of
incorporation, or (z) any provision of any indenture, agreement or other
instrument to which the Company or any of its properties or assets is bound,
(iii) does not result in a breach of or constitute a default under any such
order, indenture, agreement or other instrument, and (iv) does not result in
the creation or imposition of any lien, charge, restriction, claim or
encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) On or before the date of Closing, the Shares will have been duly
authorized and, when issued in accordance with this Agreement, will be validly
issued, fully paid and nonassessable and will be free and clear of all liens,
charges, restrictions, claims and encumbrances.
SECTION 2.3 VALIDITY. This Agreement has been duly executed and delivered
by the Company and constitutes its legal, valid and binding obligation,
enforceable against the Company in accordance with its terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
In order to induce the Company to enter into this Agreement and issue,
sell and deliver the Shares, each Purchaser hereby severally represents and
warrants as follows:
2
<PAGE> 6
SECTION 3.1 INVESTOR QUALIFICATIONS. Purchaser is an "accredited"
investor as such term is defined in Regulation D promulgated pursuant to the
Securities Act (as defined below). Purchaser, by reason of Purchaser's business
or financial experience, directly or indirectly, is capable of evaluating the
merits and risks of Purchaser's investment in the Company, and has the capacity
to protect Purchaser's own interests in connection with the purchase of the
Shares.
SECTION 3.2 INVESTMENT. Purchaser is acquiring the Shares for investment
for Purchaser's own account, not as a nominee or agent, and not with the view
to, or for resale in connection with, any distribution thereof. Purchaser
understands that the issuance and sale of the Shares has not been, and will not
be, registered under the Securities Act of 1933 (the "Securities Act") by
reason of a specific exemption from the registration provisions of the
Securities Act that depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of Purchaser's representations as
expressed herein. Purchaser has not been formed for the specific purpose of
acquiring the Shares.
SECTION 3.3 RULE 144. Purchaser acknowledges that the Shares must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act, which permit
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions.
SECTION 3.4 NO PUBLIC MARKET. Purchaser understands that no public market
now exists for the Common Stock or any other securities issued by the Company,
that the Company has made no assurances that a public market will ever exist
for the Common Stock and that, even if such a public market exists at some
future time, the Company may not then be satisfying the current public
information requirements of Rule 144.
SECTION 3.5 AUTHORIZATION. The execution, delivery and performance by the
Purchaser of this Agreement and the execution, delivery and performance by the
Company of this Agreement and the Merger Agreement (i) have been duly
authorized by all requisite corporate action of the Purchaser, (ii) does not
violate any provision of law applicable to the Purchaser, any order of any
court or other agency of government applicable to the Purchaser or any
provisions of any indenture, agreement or other instrument to which the
Purchaser or any of its properties or assets is bound, except as would not have
a material adverse effect on the Purchaser, or Purchaser's certificate of
incorporation, (iii) does not result in a breach of or constitute a default
under any indenture, agreement or other instrument to which the Purchaser or
any of its properties or assets is subject, except as would not have a material
adverse effect on the Purchaser, and (iv) does not result in the creation or
imposition of any lien, charge, restriction, claim or encumbrance of any nature
whatsoever upon any of the properties or assets of the Purchaser, except as
would not have a material adverse effect on the Purchaser. This Agreement has
been duly executed and delivered by the Purchaser, and constitutes its valid
binding obligation, enforceable against the Purchaser in accordance with its
terms.
SECTION 3.6 BROKERS OR FINDERS. Purchaser has not incurred, and will not
incur, directly or indirectly, as a result of any action taken by Purchaser,
any liability for brokerage or finders' fees or agents' commissions or any
similar charges in connection with this Agreement.
3
<PAGE> 7
SECTION 3.7 ORGANIZATION AND POWER. Purchaser is a corporation or other
entity duly formed, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation. Purchaser has the requisite
power and authority to execute, deliver and perform this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 COMPLIANCE WITH COVENANTS AND PERFORMANCE OF OBLIGATIONS. TC
and KR each agree to take or cause to be taken all actions necessary to cause
the Company to comply with its covenants and agreements, and to perform all of
its obligations, contained in the Merger Agreement.
SECTION 4.2 AMENDMENTS. Except as otherwise expressly provided herein,
the provisions of this Agreement may be amended only by the written consent of
the parties hereto. No course of dealing between the Company and any Purchaser
or any delay in exercising any rights hereunder will operate as a waiver of any
rights of that party.
SECTION 4.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or made in writing by any party
in connection herewith will survive the execution and delivery of this
Agreement and Closing.
SECTION 4.4 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any party hereto will bind and inure to the benefit of the
respective successors, assigns, heirs, beneficiaries and estates of the parties
hereto, whether so expressed or not.
SECTION 4.5 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
SECTION 4.6 DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute
a part of this Agreement.
SECTION 4.7 NOTICES. Any notices required, desired or permitted to be
given hereunder, shall be delivered personally, sent by overnight courier or
mailed, registered or certified mail, return receipt requested, to the
following addresses (or to such other address as each party may specify in a
notice given hereunder) or transmitted by facsimile transmission (with such
transmission promptly confirmed by writing delivered personally, by overnight
courier or mailed as provided in this Section 4.7) and shall be deemed to have
been received on the day of personal delivery, one business day after delivery
to the overnight courier service, four business days after such mailing or, in
the case of facsimile transmission, when received:
4
<PAGE> 8
If to TC, to:
Tribune Company
435 North Michigan Avenue
Chicago, IL 60611
Attention: General Counsel
Facsimile: (312) 222-4206
with a copy to:
Sidley & Austin
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
Attention: Larry A. Barden
Facsimile No.: (312) 853-7036
If to KR, to:
KnightRidder.com, Inc.
50 West San Fernando Street
7th Floor
San Jose, CA 95113
Attention: General Counsel
Facsimile: (408) 938-7863
with a copy to:
Orrick, Herrington & Sutcliffe LLP
One Federal Reserve Bank Building
400 Sansome Street
San Francisco, CA 94111-3143
Attention: Peter Lillevand
Facsimile: (415) 773-5759
If to the Company, to:
Career Holdings, Inc.
c/o Tribune Company
435 North Michigan Avenue
Chicago, IL 60611
Attention: President
5
<PAGE> 9
with a copy to:
KnightRidder.com, Inc.
50 West San Fernando Street
7th Floor
San Jose, CA 95113
Attention: General Counsel
SECTION 4.8 THIRD PARTY BENEFICIARIES. The Company, TC and KR hereby
acknowledge that, as contemplated by the Merger Agreement, CareerBuilder is an
express third-party beneficiary to the obligations of the parties hereunder. TC
and KR agree to comply with Sections 6.7 and 6.8 of the Merger Agreement as if
they were parties thereto. The parties agree that for purposes of Section
6.7(c) of the Merger Agreement the term "Material Adverse Effect on Parent"
shall be deemed to refer to TC and KR taken together.
SECTION 4.9 GOVERNING LAW. THE VALIDITY, MEANING AND EFFECT OF THIS
AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF DELAWARE
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE.
SECTION 4.10 SCHEDULES AND EXHIBITS. All Schedules and Exhibits hereto
are an integral part of this Agreement.
SECTION 4.11 FINAL AGREEMENT. This Agreement, together with those
documents which are exhibits hereto, constitute the final agreement of the
parties concerning the matters referred to herein and therein, and supersedes
all prior and contemporaneous agreements and understandings.
SECTION 4.12 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, and such counterparts together shall constitute one
instrument.
SECTION 4.13 JURISDICTION; VENUE; FORUM NON CONVENIENS. (a) THE COMPANY
AND EACH PURCHASER HEREBY IRREVOCABLY SUBMITS IN ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
IN THE STATE OF ILLINOIS OR DELAWARE AND WAIVES ANY AND ALL OBJECTIONS TO
JURISDICTION THAT IT MAY HAVE UNDER THE LAWS OF THE UNITED STATES OR OF ANY
STATE.
(b) THE COMPANY AND EACH PURCHASER WAIVE ANY OBJECTION THAT IT MAY HAVE
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED
ON FORUM NON CONVENIENS) TO THE LOCATION OF THE COURT IN WHICH ANY PROCEEDING
IS COMMENCED IN ACCORDANCE WITH THIS SECTION 4.13.
6
<PAGE> 10
SECTION 4.14 WAIVER OF JURY TRIAL. THE COMPANY AND EACH PURCHASER WAIVE
ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE, BETWEEN ANY OF THE PARTIES HERETO ARISING OUT OF OR RELATED TO
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
SECTION 4.15 TERMINATION. This Agreement shall not be terminated for any
reason so long as the Merger Agreement is in effect and has not been
terminated. In the event of any purported termination of this Agreement by TC
or KR without the consent of CareerBuilder at a time when the Merger Agreement
has not been terminated, CareerBuilder shall have the right to terminate the
Merger Agreement and the Purchasers shall cause the Company to consent to such
termination.
7
<PAGE> 11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
July 16, 2000.
<TABLE>
<S> <C>
CAREER HOLDINGS, INC.
By: /s/ DAVID HILLER
--------------------------------
Name:
Title:
TRIBUNE COMPANY
By: /s/ DAVID HILLER
------------------------------
Name:
Title
KNIGHTRIDDER.COM, INC.
By: /S/ DAN FINNIGAN
------------------------------
Name: Dan Finnigan
Title President
</TABLE>
8
<PAGE> 12
EXHIBIT A TO
INVESTMENT AGREEMENT
<TABLE>
<CAPTION>
Number of Shares of
Name of Purchaser Common Stock Purchase Price
----------------- ------------ --------------
<S> <C> <C>
Tribune Company 15,375,000 $123,000,000
KnightRidder.com, Inc. 15,375,000 $123,000,000
</TABLE>
A-1
<PAGE> 13
EXHIBIT B TO
INVESTMENT AGREEMENT
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CAREER HOLDINGS, INC.
FIRST: The name of the corporation (which is hereinafter referred to as
the "Corporation") is Career Holdings, Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is The Corporation Trust Company, The Corporation Trust Center,
1209 Orange Street, in the City of Wilmington, County of New Castle.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of all classes of capital stock which
the Corporation shall have the authority to issue is 77,800,000 shares of
common stock with a par value of $.01 per share
FIFTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the By-laws of the Corporation, subject to any specific limitation on
such power contained in any By-laws adopted by the stockholders. Elections of
directors need not be by written ballot unless the By-laws of the Corporation
so provide.
SIXTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the General Corporation
Law of Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit. If the General Corporation Law of Delaware is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of Delaware, as so amended. Any repeal or
modification of this Article Seventh by the stockholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
SEVENTH: Each person who is or was a director or officer of the
Corporation, and each person who serves or served at the request of the
Corporation as a director or officer of another enterprise, shall be
indemnified by the Corporation in accordance with, and to the fullest
B-1
<PAGE> 14
extent authorized by, the General Corporation Law of Delaware as it may be in
effect from time to time.
THE UNDERSIGNED, being the President of the Corporation, has executed
this Amended and Restated Certificate of Incorporation on July __, 2000.
By:
--------------------------
Name:
Title:
B-2
<PAGE> 15
EXHIBIT C TO
INVESTMENT AGREEMENT
FORM OF
REGISTRATION RIGHTS AGREEMENT
C-1
<PAGE> 16
EXHIBIT D TO
INVESTMENT AGREEMENT
FORM OF AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
D-1