Agreement and Plan of Merger

Dated as of December 27, 2001

among

YAHOO! INC.

HJ ACQUISITION CORP.

and

HOTJOBS.COM, LTD.


TABLE OF CONTENTS

 
   
  Page
ARTICLE I THE OFFER AND THE MERGER   2
  Section 1.1   The Offer   2
  Section 1.2   Company Actions   4
  Section 1.3   Directors   5
  Section 1.4   The Merger   6
  Section 1.5   Closing   6
  Section 1.6   Effective Time   7
  Section 1.7   Certificate of Incorporation and Bylaws   7
  Section 1.8   Directors and Officers of the Surviving Corporation   7
  Section 1.9   Effects of the Merger   7
  Section 1.10   Subsequent Actions   7
ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES   8
  Section 2.1   Effect on Capital Stock   8
  Section 2.2   Exchange of Certificates   9
  Section 2.3   Dissenting Shares   12
ARTICLE III REPRESENTATIONS AND WARRANTIES   12
  Section 3.1   Representations and Warranties of the Company   12
  Section 3.2   Representations and Warranties of Parent and Sub   25
ARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS   29
  Section 4.1   Conduct of Business   29
  Section 4.2   No Solicitation   32
ARTICLE V ADDITIONAL AGREEMENTS   33
  Section 5.1   Preparation of the Proxy Statement; Stockholders Meetings   33
  Section 5.2   Letters of the Company's Accountants   34
  Section 5.3   [RESERVED]   35
  Section 5.4   Access to Information; Confidentiality   35
  Section 5.5   Reasonable Best Efforts   35
  Section 5.6   Stock Options; Employee Benefits   37
  Section 5.7   Indemnification, Exculpation and Insurance   38
  Section 5.8   Fees and Expenses   40
  Section 5.9   Public Announcements   41
  Section 5.10   Affiliates   41
  Section 5.11   Nasdaq Listing   42
  Section 5.12   Tax Treatment   42
  Section 5.13   Notices of Certain Events   42
  Section 5.14   Conveyance Taxes   42
  Section 5.15   Stockholder Agreements   43
  Section 5.16   Matters   43
  Section 5.17   Antitrust Notice   43
ARTICLE VI CONDITIONS PRECEDENT   43
  Section 6.1   Conditions to Each Party's Obligation to Effect the Merger   43
  Section 6.2   Frustration of Closing Conditions   43
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER   44
  Section 7.1   Termination   44
  Section 7.2   Effect of Termination   45
  Section 7.3   Amendment   46
  Section 7.4   Extension; Waiver   46

i


ARTICLE VIII GENERAL PROVISIONS   46
  Section 8.1   Nonsurvival of Representations and Warranties   46
  Section 8.2   Notices   46
  Section 8.3   Definitions   47
  Section 8.4   Interpretation   49
  Section 8.5   Counterparts   49
  Section 8.6   Entire Agreement; Third-Party Beneficiaries   49
  Section 8.7   Governing Law   49
  Section 8.8   Assignment   49
  Section 8.9   Enforcement   50
  Section 8.10   Severability   50

Exhibit 5.10

 

Form of Company Affiliate Agreement

 

 
Exhibit 5.15   Form of Stockholder Agreement    

ii


INDEX OF DEFINED TERMS

 
  Defined Term
Section

Adjusted Option   5.6(a)
Affiliate   8.3(a)
Agreement   Preamble
Appointment Time   1.3(c)
Benefit Plan   3.1(l)(i)
Benefit Plans   3.1(l)(i)
Business Day   8.3(b)
Certificate of Merger   1.6
Certificates   2.2(b)
Closing   1.5
Closing Date   1.5
Code   Preamble
Commonly Controlled Entity   3.1(l)(i)
Company   Preamble
Company Common Stock   Preamble
Company Disclosure Memorandum   3.1
Company Preferred Stock   3.1(c)
Company SEC Documents   3.1(e)
Company Stock Plans   5.6(a)
Company Stockholder Approval   3.1(r)
Company Stockholders Meeting   5.1(b)
Confidentiality Agreement   5.4
DGCL   1.4
Dissenting Shares   2.3(a)
DOJ   5.5(c)
Dow Jones News Release   3.1(e)
Effective Time   1.6
Employees   5.6(e)
Environmental Laws   3.1(j)
ERISA   3.1(l)(i)
ESPP   5.6(f)
Exchange Act   1.1(a)
Exchange Agent   2.2(a)
Exchange Fund   2.2(a)
Exchange Offer Consideration   1.1(a)
Exchange Ratio   1.1(a)
Expenses   5.8(b)
Filed Company SEC Document   3.1(e)
Filed Parent SEC Document   3.2(d)
Form S-4   3.1(f)
Forward Merger   Preamble
FTC   5.5(c)
Fully Diluted Basis   1.1(b)
GAAP   3.1(e)
Governmental Entity   3.1(d)
Hazardous Materials   3.1(j)
HSR Act   3.1(d)

iii


Indemnified Party   5.7(a)
Independent Directors   1.3(b)
Initial Expiration Date   1.1(b)
Intellectual Property Rights   3.1(q)
IRS   3.1(l)(i)
Knowledge   8.3(c)
Law   1.1(b)
Legal Provisions   3.1(j)
Liens   3.1(d)
Material Adverse Effect   8.3(d)
Material Contracts   3.1(i)
Merger   1.4
Merger Consideration   2.1(c)
Minimum Consideration   1.1(b)
Offer   Preamble
Offer Documents   1.1(c)
Offer Registration Statement   1.1(c)
Offer to Purchase   1.1(b)
Option Exchange Ratio   5.6(a)
Parent   Preamble
Parent Common Stock   Preamble
Parent Disclosure Memorandum   3.2
Parent Preferred Stock   3.2(b)
Parent Market Price   1.1(a)
Parent SEC Documents   3.2(d)
Parent Stock Plans   3.2(b)
Pension Plans   3.1(l)(i)
Per Share Cash Consideration   1.1(a)
Permits   3.1(j)
Person   8.3(e)
Preliminary Prospectus   1.1(c)
Proxy Statement   3.1(d)
Recommendations   1.2(c)
Regulation M-A   1.1(c)
Regulatory Law   5.5(b)
Release   3.1(j)
Restraints   6.1(b)
Reverse Merger   Preamble
Schedule 14D-9   1.2(a)
Schedule TO   1.1(c)
SEC   1.1(b)
Shares   Preamble
Significant Subsidiary   8.3(f)
Securities Act   3.1(e)
Stockholder   Preamble
Stockholder Agreement   5.15
Stock Option   5.6(a)
Sub   Preamble
Subsidiary   8.3(g)

iv


Superior Proposal   8.3(h)
Surviving Corporation   1.4
Takeover Proposal   4.2(a)
Tax Opinion   5.12
Tax Returns   3.1(n)
Taxes   3.1(n)
Termination Fee   5.8(b)
TMP   Preamble
TMP Agreement   Preamble
Transaction   Preamble
Trading Day   8.3(i)
Valuation Period   1.1(a)
Welfare Plans   3.1(l)(i)

v


AGREEMENT AND PLAN OF MERGER

    AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of December 27, 2001, by and among Yahoo! Inc., a Delaware corporation ("Parent"), HJ Acquisition Corp., a Delaware corporation and a newly formed, direct, wholly-owned subsidiary of Parent ("Sub"), and HotJobs.com, Ltd., a Delaware corporation (the "Company").

    WHEREAS, the respective Boards of Directors of Parent, Sub and the Company have approved and declared advisable this Agreement, the Offer and the Merger (as defined herein).

    WHEREAS, it is intended that the acquisition be accomplished by Sub commencing an offer (as it may be amended from time to time as permitted by this Agreement, the "Offer") in which each of the issued and outstanding shares of common stock, par value $0.01, of the Company (the "Shares" or "Company Common Stock"), upon the terms and subject to the conditions set forth in this Agreement, may be exchanged for the right to receive from Parent (A) a fraction of a share of common stock, par value $0.001 per share, of Parent together with the associated rights to purchase shares of Series A Junior Participating Preferred Stock, par value $.001 per share, of Parent issued and issuable pursuant to the Rights Agreement dated as of March 15, 2001 between Parent and EquiServe Trust Company, N.A., as Rights Agent (together, "Parent Common Stock") as determined in accordance with Article I hereof and (B) the Per Share Cash Consideration (together with any cash to be paid in lieu of fractional shares of Parent Common Stock to be paid pursuant to Article I hereof) in cash, to be followed by a merger of the Company with and into Sub (the "Forward Merger").

    WHEREAS, subsequent to the acquisition by Sub of Shares in the Offer, upon the terms and subject to the conditions set forth in this Agreement, each issued and outstanding Share, other than Shares owned by Parent, Sub or the Company, will be converted into the right to receive cash and Parent Common Stock as set forth herein.

    WHEREAS, the Company's Board of Directors has unanimously, by those present at such meeting of the Board of Directors, determined that the consideration to be paid for each Share in the Offer and the Merger is fair to the holders of such Shares and has resolved to recommend that the holders of each Share accept the Offer and adopt this Agreement and each of the transactions contemplated by this Agreement upon the terms and subject to the conditions set forth herein.

    WHEREAS, the Company has validly terminated the Agreement and Plan of Merger (the "TMP Agreement"), dated as of June 29, 2001, among TMP Worldwide Inc. ("TMP"), TMP Tower Corp. and the Company pursuant to Section 7.1(f) thereof.

    WHEREAS, the voting agreement by and between Richard Johnson and TMP dated as of June 29, 2001 was validly terminated on December 27, 2001 in accordance with Section 7.16 thereof.

    WHEREAS, the voting agreement by and between John A. Hawkins and TMP dated as of June 29, 2001 was validly terminated on December 27, 2001 in accordance with Section 7.16 thereof.

    WHEREAS, if the Tax Opinion (as defined herein) is not obtained, the parties desire to provide for an alternate merger structure providing for the merger of Sub (or other direct or indirect wholly-owned subsidiary of Parent, as determined by Parent in its sole discretion) with and into the Company (the "Reverse Merger"), and the surviving corporation shall thereby become a direct or indirect wholly-owned subsidiary of Parent.

    WHEREAS, for U.S. Federal income tax purposes, it is intended that the Offer and the Forward Merger (the "Transaction") shall be treated as an integrated transaction and shall qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), and that this Agreement shall be, and is hereby, adopted as a plan of reorganization for purposes of Sections 354 and 361 of the Code.

    WHEREAS, contemporaneously with the execution and delivery of this Agreement, and as a condition and inducement to Parent's and Sub's willingness to enter into this Agreement, certain


stockholders of the Company (each, a "Stockholder") are entering into a stockholders agreement in the form attached hereto as Exhibit 5.15, pursuant to which each such Stockholder is agreeing, among other things, to validly tender for exchange all Shares owned by such Stockholder.

    NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

THE OFFER AND THE MERGER

    Section 1.1   The Offer.

2


3


    Section 1.2   Company Actions.

4


    Section 1.3   Directors.

5


    Section 1.4   The Merger.

    Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Delaware General Corporation Law (the "DGCL"), the Forward Merger shall be effected and the Company shall be merged with and into Sub at the Effective Time with the separate corporate existence of the Company ceasing and Sub continuing as the surviving corporation; provided, however, that if Parent does not obtain the Tax Opinion (as defined herein), then the Reverse Merger shall be effected, with the separate corporate existence of Sub (or another direct or indirect wholly-owned subsidiary of Parent, as determined by Parent in its sole discretion) ceasing and the Company continuing as the surviving corporation. The surviving corporation of the Forward Merger or the Reverse Merger, as the case may be, shall be herein referred as the "Surviving Corporation" and the Forward Merger and Reverse Merger shall collectively be referred to as the "Merger". The Surviving Corporation shall become a direct or indirect wholly owned subsidiary of Parent and shall succeed to and assume all the rights and obligations of Sub and the Company in accordance with the DGCL.

    Section 1.5   Closing.

    The closing of the Merger (the "Closing") will take place at 10:00 a.m. on a date to be specified by the parties (the "Closing Date"), which shall be no later than the second Business Day after

6


satisfaction or waiver (subject to applicable Law) of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 525 University Ave., Ste. 1100, Palo Alto, California, unless another date or place is agreed to by the parties hereto.

    Section 1.6   Effective Time.

    Subject to the provisions of this Agreement, as soon as practicable on the Closing Date, the parties shall file a certificate of merger (the "Certificate of Merger") executed in accordance with the relevant provisions of the DGCL and shall make all other filings or recordings required under the DGCL. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware, or at such other time as Parent and the Company shall agree and specify in the Certificate of Merger (the time the Merger becomes effective being the "Effective Time").

    Section 1.7   Certificate of Incorporation and Bylaws.

    Section 1.8   Directors and Officers of the Surviving Corporation.

    Section 1.9   Effects of the Merger.

    At and after the Effective Time, the Merger shall have the effects set forth in the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all the property, rights, privileges, powers and franchises of the Company and Sub shall be vested in the Surviving Corporation, and all debts, liabilities and duties of the Company and Sub shall become the debts, liabilities and duties of the Surviving Corporation.

    Section 1.10   Subsequent Actions.

    If at any time after the Effective Time the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each such corporation or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all

7


right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

ARTICLE II

EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES

    Section 2.1   Effect on Capital Stock.  As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any Shares or any shares of capital stock of Parent or Sub:

8


    Section 2.2   Exchange of Certificates.

9


10


11


    Section 2.3   Dissenting Shares.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

    Section 3.1   Representations and Warranties of the Company.  Except as expressly set forth in the Filed Company SEC Documents filed since December 31, 2000 or on the disclosure memorandum delivered by the Company to Parent immediately prior to the execution of this Agreement and initialed on behalf of Parent and the Company, which disclosure memorandum specifies the section or subsection of this Agreement to which the exception relates (the "Company Disclosure Memorandum"), the Company represents and warrants to Parent and Sub as follows:

12


13


14


15


16


17


18


19


20


21


22


23


24


    Section 3.2   Representations and Warranties of Parent and Sub.  Except as expressly set forth in the Filed Parent SEC Documents filed since December 31, 2000 or on the disclosure memorandum delivered by Parent to the Company immediately prior to the execution of this Agreement and initialed on behalf of the Company and Parent, which disclosure memorandum specifies the section or subsection of this Agreement to which the exception relates (the "Parent Disclosure Memorandum"), Parent and Sub represent and warrant to the Company as follows:

25


26


27


28


ARTICLE IV

COVENANTS RELATING TO CONDUCT OF BUSINESS

    Section 4.1   Conduct of Business.

29


30


31


    Section 4.2   No Solicitation.

32


ARTICLE V

ADDITIONAL AGREEMENTS

    Section 5.1   Preparation of the Proxy Statement; Stockholders Meetings

33


    Section 5.2   Letters of the Company's Accountants.  

    The Company shall use its reasonable best efforts to cause to be delivered to Parent a letter from KPMG LLP, the Company's independent public accountants, dated a date within two (2) Business Days before the date on which the Form S-4 shall become effective addressed to Parent and the Company, in form and substance reasonably satisfactory to Parent and customary in scope and substance for comfort letters delivered by independent public accountants in connection with registration statements similar to the Form S-4.

34


    Section 5.3   [RESERVED]  

    Section 5.4   Access to Information; Confidentiality.  Upon reasonable notice, each party shall (and shall cause its Subsidiaries to) afford to the officers, employees, accountants, counsel, financial advisors and other representatives of the other party reasonable access during normal business hours, during the period prior to the Effective Time, to such of its properties, books, contracts, commitments, records, officers and employees as the other party may reasonably request and, during such period, such party shall (and shall cause its Subsidiaries to) furnish promptly to the other party (a) a copy of each report, schedule, registration statement and other document filed, published, announced or received by it during such period pursuant to the requirements of Federal or state securities laws, as applicable (other than documents which such party is not permitted to disclose under applicable Law), and (b) consistent with its legal obligations, all other information concerning it and its business, properties and personnel as such other party may reasonably request; provided, however, that either party may restrict the foregoing access to the extent that it reasonably concludes, after consultation with outside counsel, that (i) any Legal Provision of any Governmental Entity applicable to such party requires such party or its Subsidiaries to restrict access to any properties or information, (ii) providing such access would result in the loss of the attorney client privilege, (iii) such document discusses the pricing or dollar value of the transactions contemplated by this Agreement or (iv) the documents contain competitively sensitive information, the sharing of which could constitute a violation of any applicable antitrust laws. The parties shall hold any such information in confidence to the extent required by, and in accordance with, the provisions of the letter agreements dated as of December 13, 2001 and December 19, 2001, respectively, between Parent and the Company (as it may be amended from time to time, the "Confidentiality Agreement"). Each party shall make all reasonable best efforts to minimize disruption to the business of the other party and its Subsidiaries which may result from the requests for data and information hereunder. All requests for access and information shall be coordinated through senior executives of the parties to be designated. Any investigation by Parent or the Company shall not affect the representations and warranties of Parent or the Company, as the case may be.

    Section 5.5   Reasonable Best Efforts.  

35


36


    Section 5.6   Stock Options; Employee Benefits.  

37


    Section 5.7   Indemnification, Exculpation and Insurance.  

38


39


    Section 5.8   Fees and Expenses.  

40


    Section 5.9   Public Announcements.  

    Parent and the Company shall consult with each other before issuing, and give each other the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement, including the Offer and the Merger, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system. In addition to the foregoing, neither Parent nor the Company shall issue any press release or otherwise make any public statement or disclosure concerning nonpublic information relating to the other party's business, financial condition or results of operations without the consent of the other party, which consent shall not be unreasonably withheld or delayed.

    Section 5.10   Affiliates.  

    As soon as practicable after the date hereof, and in no event more than twenty (20) days prior to the Initial Expiration Date, the Company shall deliver to Parent a letter identifying all Persons who are, at the time this Agreement is submitted for adoption by the stockholders of the Company, "affiliates" of the Company for purposes of Rule 145 under the Securities Act. The Company shall use its reasonable best efforts to cause each such Person to deliver to Parent at least ten (10) days prior to the Initial Expiration Date a written agreement substantially in the form attached as Exhibit 5.10 hereto.

41


    Section 5.11   Nasdaq Listing.  

    Parent shall use its reasonable best efforts to cause the shares of Parent Common Stock to be issued in the Offer and the Merger and such other shares of Parent Common Stock to be reserved for issuance in connection with the Offer and the Merger to be approved for listing on the Nasdaq National Market, subject to official notice of issuance, prior to the Closing Date.

    Section 5.12   Tax Treatment.  

    Parent and the Company intend that the Transaction will qualify as a reorganization within the meaning of Section 368(a) of the Code. Parent and the Company shall each use all reasonable efforts to cause the Transaction to so qualify. From and after the date of this Agreement, each party hereto shall use its reasonable best efforts to cause the Transaction to qualify, and shall not, without the prior written consent of the other parties hereto, knowingly take any actions or cause any actions to be taken which could reasonably be expected to prevent the Transaction from qualifying as a reorganization under the provisions of Section 368(a) of the Code. Following the Effective Time, neither the Surviving Corporation nor Parent nor any of their respective affiliates shall take any action or cause any action to be taken which could reasonably be expected to cause the Transaction to fail to qualify as a reorganization under Section 368(a) of the Code. Parent shall use its reasonable best efforts to obtain an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, or another nationally recognized United States Federal income tax counsel or "Big Five" accounting firm (based on the facts and customary representations and assumptions) that the Transaction will be treated as a "reorganization" within the meaning of Section 368(a) of the Code (the "Tax Opinion"). Parent, the Company and Sub agree to provide certifications reasonably requested by counsel issuing such Tax Opinion. Notwithstanding anything express or implied to the contrary in this Agreement, but subject to the provisions of this Section 5.12, if the Tax Opinion is not obtained, then the Reverse Merger shall be effected instead of the Forward Merger.

    Section 5.13   Notices of Certain Events.  

    Each party hereto shall promptly notify the other parties orally and in writing of:

    Section 5.14   Conveyance Taxes.  

    The Company and Parent shall cooperate in the preparation, execution and filing of all returns, questionnaires, applications or other documents regarding any real property transfer or gains, sales, use,

42


transfer, value added, stock transfer and stamp taxes, any transfer, recording, registration and other fees, and any similar taxes which become payable in connection with the transaction contemplated by this Agreement that are required or permitted to be filed on or before the Effective Time.

    Section 5.15   Stockholder Agreements.  

    Concurrently with the execution and delivery of this Agreement, Richard Johnson shall execute and deliver to Parent an agreement substantially in the form of Exhibit 5.15 hereto (the "Stockholder Agreement"), pursuant to which, among other things, such Stockholder is agreeing to vote all of the shares of Company Common Stock owned, beneficially or of record, by him to approve the Merger and to tender all such shares into the Offer, subject to exceptions provided for in such agreement.

    Section 5.16   Matters.  

    Prior to the Effective Time, Parent and the Company shall take all such steps as may be required to cause any dispositions of Company Common Stock (including derivative securities with respect to the Company Common Stock) resulting from the transactions contemplated by this Agreement by each individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act, such steps to be taken in accordance with the No-Action Letter, dated January 12, 1999, issued by the SEC to Skadden, Arps, Slate, Meagher & Flom LLP.

    Section 5.17   Antitrust Notice  

    Within five (5) Business Days of the date on which the DOJ, the FTC or any other agency, branch or instrumentality of the United States federal government has first filed a complaint, motion, petition or similar document with a United States federal courts seeking to enjoin the consummation of the Offer, the Merger or any of the other transactions contemplated hereby, Parent shall deliver a notice to the Company pursuant to Section 8.2 including a copy of such complaint, motion, petition or similar document.

ARTICLE VI

CONDITIONS PRECEDENT

    Section 6.1   Conditions to Each Party's Obligation to Effect the Merger.

    The respective obligation of each party to effect the Merger is subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:

    Section 6.2   Frustration of Closing Conditions.  

    None of the Company, Parent or Sub may rely on the failure of any condition set forth in Section 6.1 to be satisfied if such failure was caused by such party's failure to use its reasonable best efforts to consummate the Merger and the other transactions contemplated by this Agreement, as required by and subject to Section 5.5.

43


ARTICLE VII

TERMINATION, AMENDMENT AND WAIVER

    Section 7.1   Termination.

    This Agreement may be terminated at any time prior to the Effective Time, whether before or after the Stockholder Approval:

44


    Section 7.2   Effect of Termination.

    In the event of termination of this Agreement by either the Company or Parent as provided in Section 7.1, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of Parent, Sub or the Company, other than the provisions of the second sentence of Section 5.4 (obligation to keep confidential nonpublic information received from the other party) and Section 5.8 (fees and expenses), this Section 7.2 and Article VIII, which provisions shall survive such termination, provided that, notwithstanding anything to the contrary contained in this Agreement,

45


neither Parent nor the Company shall be relieved or released from any liabilities or damages arising out of its willful and material breach of this Agreement.

    Section 7.3   Amendment.  

    This Agreement may be amended by the parties hereto at any time before or after approval of the matters presented in connection with the Merger to the stockholders of the Company; provided, however, that after any such approval, there shall be made no amendment that by law requires further approval by the stockholders of the Company without such approval. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.

    Section 7.4   Extension; Waiver.  

    At any time prior to the Effective Time, the parties may (i) extend the time for the performance of any of the obligations or other acts of the other parties, (ii) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto or (iii) subject to the proviso of Section 7.3, waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

ARTICLE VIII

GENERAL PROVISIONS

    Section 8.1   Nonsurvival of Representations and Warranties.

    None of the representations, warranties, covenants and other agreements in this Agreement or in any instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants and other agreements, shall survive the Effective Time, except for those covenants and agreements contained herein and therein (including Sections 5.6(e) and 5.7) that by their terms apply or are to be performed in whole or in part after the Effective Time and this Article VIII.

    Section 8.2   Notices.  

    All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given, and shall be effective upon receipt, if delivered personally, telecopied (which is confirmed) or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):

if to Parent or Sub, to:   Yahoo! Inc.
701 First Avenue
Sunnyvale, California 94089
Telephone: (408) 349-3300
Telecopier: (408) 349-3400
Attention: Chief Executive Officer

and

 

Yahoo! Inc.
701 First Avenue
Sunnyvale, California 94089
Telephone: (408) 349-3300
Telecopier: (408) 349-3400
Attention: General Counsel

46



with a copy to (which shall not constitute notice):

 

Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Suite 1100
Palo Alto, California 94301
Telephone: 650-470-4500
Telecopier: 650-470-4570
Attention: Kenton J. King, Esq.

if to the Company, to:

 

HotJobs.com, Ltd.
406 West 31st Street
New York, New York 10001
Telephone: (212) 699-5300
Telecopier: (917) 438-2632
Attention: Chief Executive Officer

and

 

HotJobs.com, Ltd.
406 West 31st Street
New York, New York 10001
Telephone: (212) 699-5300
Telecopier: (917) 438-2632
Attention: General Counsel

with a copy to (which shall not constitute notice):

 

Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10014
Telephone: 212-403-1000
Telecopier: 212-403-2000
Attention: Andrew R. Brownstein, Esq.
Mitchell S. Presser, Esq.

    Section 8.3   Definitions.  

    For purposes of this Agreement:

47


48


    Section 8.4   Interpretation.  

    When a reference is made in this Agreement to an Article, a Section, Exhibit or Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation". The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. References to this Agreement include references to the Company Disclosure Memorandum and Parent Disclosure Memorandum. Each Section of this Agreement is qualified by the matters set forth in the related Section of the Company Disclosure Memorandum and of the Parent Disclosure Memorandum and by such matters set forth any place else in this Agreement or in the Company Disclosure Memorandum or the Parent Disclosure Memorandum where the applicability of such qualification to the Section of this Agreement is reasonably apparent.

    Section 8.5   Counterparts.  

    This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties.

    Section 8.6   Entire Agreement; Third-Party Beneficiaries.  

    This Agreement and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement and the Confidentiality Agreement and (b) except for the provisions of Sections 5.6(e) (including the corresponding section of the Company Disclosure Memorandum) and 5.7 are not intended to confer upon any Person other than the parties any rights or remedies.

    Section 8.7   Governing Law.  

    This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

    Section 8.8   Assignment.  

    Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties, except that Sub may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to Parent or to any direct or indirect wholly-owned newly-formed United States Subsidiary of Parent, provided that no such assignment shall adversely affect the intended tax-free nature of the transaction and provided further that no such assignment

49


shall relieve Sub of any of its obligations hereunder. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

    Section 8.9   Enforcement.  

    The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at law 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 the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Chancery or other Courts of the State of Delaware, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Chancery or other Courts of the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the Chancery or other Courts of the State of Delaware, and each of the parties irrevocably waives the right to trial by jury, and (d) each of the parties irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which such party is to receive notice.

    Section 8.10   Severability.  

    If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]

50


    IN WITNESS WHEREOF, Parent, Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above.

    YAHOO! INC.

 

 

By:

 

 
        /s/ TERRY SEMEL   
Name: Terry Semel
Title: Chairman and Chief Executive Officer

 

 

HJ ACQUISITION CORP.

 

 

By:

 

 
        /s/ TERRY SEMEL   
Name: Terry Semel
Title: Chief Executive Officer

 

 

HOTJOBS.COM, LTD.

 

 

By:

 

 
        /s/ DIMITRI BOYLAN   
Name: Dimitri Boylan
Title: Chief Executive Officer

ANNEX I

    Notwithstanding any other provisions of the Offer, and in addition to (and not in limitation of) Sub's rights to extend and amend the Offer at any time in its sole discretion (subject to the provisions of the Merger Agreement), Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to Sub's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restriction referred to above, the payment for, any validly tendered Shares unless the Minimum Condition shall have been satisfied. Furthermore, notwithstanding any other provisions of the Offer, Sub shall not be required to accept for payment or pay for any validly tendered Shares if, at the scheduled expiration date (i) the waiting period (and any extension thereof) applicable to the Offer under the HSR Act shall not have expired or been terminated, (ii) the Offer Registration Statement shall not have become effective under the Securities Act or shall be the subject of any stop order or proceeding seeking a stop order, (iii) the shares of Parent Common Stock to be issued in the Offer and the Merger and such other shares of Parent Common Stock to be reserved for issuance in connection with the Offer and the Merger shall not have been approved for listing on the Nasdaq National Market, subject to official notice of issuance or (iv) any of the following events shall occur and be continuing:


    The foregoing conditions are for the benefit of Parent and Sub, may be asserted by Parent or Sub and may be waived by Parent or Sub in whole or in part at any time and from time to time, subject to the terms of the Merger Agreement. The failure by Parent or Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and, each such right shall be deemed an ongoing right which may be asserted at any time and from time to time.

    The capitalized terms used in this Annex I shall have the meanings set forth in the Merger Agreement to which it is annexed, except that the term "Merger Agreement" shall be deemed to refer to the Agreement to which this Annex I is annexed.

Source: OneCLE Business Contracts.