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
