|
Exhibit
10.21
KENEXA
CORPORATION
WAIVER BY STOCKHOLDERS
AND
AMENDMENT TO PURCHASE
AGREEMENTS
WHEREAS, each of the
undersigned, other than the Company, is a stockholder (the
“Stockholder”) of Kenexa Corporation, a Pennsylvania
corporation (the “Company”); and
WHEREAS, in February 2001,
pursuant to the Series A Redeemable Participating Preferred Stock
and Class C Common Stock Purchase Agreement by and among Wafra
Acquisition Fund 14, L.P. and the Company (the “Wafra
Purchase Agreement”), the Company closed the sale of shares
of Series A Redeemable Participating Preferred Stock (“Series
A Preferred Stock”) and shares of Class C Common Stock
(“Class C Common Stock”) to Wafra Acquisition Fund 14,
L.P. (“Wafra”) for approximately $15.5 million in cash,
pursuant to the Series A Redeemable Participating Preferred Stock
and Class C Common Stock Purchase Agreement by and among Parthenon
Investors, L.P., PCIP Investors and the Company (the
“Parthenon Purchase Agreement”) the Company closed the
sale of Series A Preferred Stock and Class C Common Stock to
Parthenon Investors, L.P. (“Parthenon”) and PCIP
Investors (“PCIP”) in exchange for the cancellation and
discharge of the Company’s bridge notes held by Parthenon and
PCIP in the amount of approximately $10 million plus approximately
$858,000 of accrued interest, and pursuant to the Exchange
Agreement by and among Parthenon, PCIP and the Company (the
“Exchange Agreement”) the Company closed the exchange
of certain shares of the Company’s Class B Common Stock
(“Class B Common Stock”) for shares of the
Company’s Series B Redeemable Participating Preferred Stock
(“Series B Preferred Stock”) (the “First
Transaction”); and
WHEREAS, the Company’s
management has been negotiating with Westbury Equity Partners SBIC,
L.P. (“Westbury”) for the sale of 6,000 shares of
Series A Preferred Stock and 280,000 shares of Class C Common Stock
for approximately $6.0 million (the “Second
Transaction”); and
WHEREAS, inasmuch as there
are currently fewer than 6,000 shares of Series A Preferred Stock
authorized and unissued, in order to provide for at least 6,000
shares of Series A Preferred Stock to be available for issuance in
the Second Transaction, the Company would be required to redeem in
the aggregate approximately 2,400 shares of Series A Preferred
Stock; and
WHEREAS, as contemplated in
the First Transaction, Parthenon and PCIP desire to sell,
collectively, in the aggregate (i) 5,852.55 shares of their Series
A Preferred Stock and (ii) 273,119 shares of their Class C Common
Stock on before June 16, 2001, and in connection therewith the
management of the Company has negotiated to redeem, pursuant to
that certain Redemption Agreement by and among the Company,
Parthenon and PCIP (the “Redemption Agreement”),
approximately (i) 2,400 shares of Series A Preferred Stock and
111,978.79 shares of Class C Common Stock held by Parthenon and
PCIP immediately prior to the closing of the Second Transaction as
described in the preceding paragraph (ii) 2,600 shares of Series A
Preferred Stock and 121,354.54 shares of Class C Common Stock held
by Parthenon and PCIP on or before June 16, 2001; and
WHEREAS, in connection with
the Second Transaction, the Company is entering into that certain
Series A Redeemable Participating Preferred Stock and Class C
Common Stock Purchase Agreement by and among the Company and
Westbury Equity Partners SBIC, L.P. (the “Westbury Purchase
Agreement”); and
WHEREAS, in connection with
the Second Transaction, each of the Stockholders desires to waive
certain of their anti-dilution rights and the prohibition on
redemption of securities at a time when there are accrued and
unpaid dividends on the Series A Preferred Stock and Series B
Preferred Stock under the Second Amended Articles of Incorporation
of the Company, as amended from time to time (the
“Articles”) and amend their respective purchase
agreements as agreed to by the Company as set forth
below.
NOW, THEREFORE, in
consideration for the promises and the mutual covenants and
agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Waivers and Amendment
of Articles :
1.1. Class B Common
Stock . Each of the holders of Class B Common Stock hereby
waives its rights under Section C.4.4(b) of the Articles to an
anti-dilution adjustment pursuant to the issuance of any shares to
Westbury in connection with the Westbury Purchase
Agreement.
1.2. Class C Common
Stock . Each of the holders of Class C Common Stock hereby
waives its rights under Section C.5.4(c) of the Articles to an
anti-dilution adjustment pursuant to the issuance of any shares to
Westbury in connection with the Westbury Purchase
Agreement.
1.3. Series A Preferred
Stock . Each of the holders of Series A Preferred Stock hereby
waives the prohibition of redemption of securities at a time when
there are accrued and unpaid dividends on the Series A Preferred
Stock and Series B Preferred Stock under Section D.2.2 of the
Articles in connection with the redemption of any shares pursuant
to the Redemption Agreement.
1.4. Series B Preferred
Stock . Each of the holders of Series B Preferred Stock hereby
waives the prohibition of redemption of securities at a time when
there are accrued and unpaid dividends on the Series A
Pref
| 
