Exhibit 10.8
NEITHER THIS STOCK PURCHASE WARRANT NOR THE SECURITIES ISSUABLE UPON ITS
EXERCISE OR CONVERSION HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE
TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH APPLICABLE
STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II)
IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER SUCH
SECURITIES ACTS OR SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN
CONNECTION WITH SUCH PROPOSED TRANSFER.
STOCK PURCHASE WARRANT
This STOCK PURCHASE WARRANT (the "Warrant") is issued as of this 2nd
day of July, 2003 by FIND/SVP, Inc., a New York corporation (the "Company"), to
PETRA MEZZANINE FUND, L.P., a Delaware limited partnership (Petra Mezzanine
Fund, L.P. and any subsequent assignee or transferee hereof are hereinafter
referred to collectively as "Holder" or "Holders").
AGREEMENT:
1. ISSUANCE OF WARRANT; TERM.
(a) For and in consideration of Petra Mezzanine Fund, L.P. ("Petra")
making an additional loan (the "Petra Loan") to the Company, in an amount of
Five Hundred Thousand Dollars ($500,000) pursuant to the terms of a secured
promissory note of even date herewith (together with any and all extensions,
replacements and renewals thereof, the "Note") and related amended and restated
loan and security agreement of even date herewith (as amended, supplemented or
otherwise modified from time to time, the "Loan Agreement"), and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company hereby grants to Holder the right to purchase 70,000
shares of the Company's common stock, $0.0001 par value per share (the "Common
Stock").
(b) The shares of Common Stock issuable upon exercise of this
Warrant are hereinafter referred to as the "Shares." This Warrant shall be
exercisable at any time and from time to time from the date hereof until April
1, 2013 (the "Expiration Date"). If this Warrant is not exercised prior to the
Expiration Date, it will expire and all rights hereunder shall be rendered void.
2. EXERCISE PRICE. The exercise price per share for which all or any of
the Shares may be purchased pursuant to the terms of this Warrant shall be one
cent ($.01) (as adjusted from time to time pursuant to Section 5, the "Exercise
Price").
3. EXERCISE.
(a) This Warrant may be exercised by the Holder hereof (but only on
the conditions hereafter set forth) as to all or any increment or increments of
ten thousand (10,000) Shares (or the balance of the Shares if less than such
number), upon delivery of written notice of intent to exercise to the Company
during normal business hours on any business day at the address set forth in
SECTION 17 hereof or such other address as the Company shall designate in a
written notice to the Holder hereof, together with this Warrant and payment to
the Company of the aggregate Exercise Price of the Shares so purchased. The
Exercise Price shall be payable, at the option of the Holder, (i) by certified
or bank check, (ii) by wire transfer of immediately available funds to an
account designated by the Company to the Holder, or (iii) by the surrender of
the Note or portion thereof having an outstanding principal balance equal to the
aggregate Exercise Price. Upon exercise of this Warrant as aforesaid, the
Company shall as promptly as practicable, and in any event within five (5)
business days thereafter, execute and deliver to the Holder of this Warrant a
certificate or certificates for the total number of whole Shares for which this
Warrant is being exercised in such names and denominations as are requested by
such Holder. If this Warrant shall be exercised with respect to less than all of
the Shares, the Holder shall be entitled to receive a new Warrant covering the
number of Shares in respect of which this Warrant shall not have been exercised,
which new Warrant shall in all other respects be identical to this Warrant. The
Company covenants and agrees that it will pay when due any and all state and
federal issue taxes which may be payable in respect of the issuance of this
Warrant or the issuance of any Shares upon exercise of this Warrant; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issuance or delivery
of any certificates for Shares in a name other than the registered holder of
this Warrant. The holder of this Warrant shall be responsible for income taxes
due, if any, under federal or state law.
(b) In lieu of exercising this Warrant pursuant to Section 3(a)
above, the Holder shall have the right to require the Company to convert this
Warrant, in whole or in part and at any time or times into Shares (the
"Conversion Right"), upon delivery of written notice of intent to convert to the
Company at its address in Section 3(a) or such other address as the Company
shall designate in a written notice to the Holder hereof, together with this
Warrant. Upon exercise of the Conversion Right, the Company shall deliver to the
Holder (WITHOUT payment by the Holder of any Exercise Price) that number of
Shares which is equal to the quotient obtained by dividing (x) the value of the
number of Shares with respect to which the Conversion Right is being exercised
(determined by subtracting the aggregate Exercise Price for the Shares with
respect to which the Conversion Right is being exercised from a number equal to
the product of (i) the Fair Market Value per Share (as such term is defined in
Section 11(c)) as at such time, MULTIPLIED by (ii) the number of Shares with
respect to which the Conversion Right is being exercised), by (y) such Fair
Market Value per Share. Any references in this Warrant to the "exercise" of this
Warrant, and the use of the term exercise herein, shall be deemed to include
(without limitation) any exercise of the Conversion Right.
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(c) No fractional Shares shall be issuable upon the exercise of this
Warrant, and the Company shall in lieu of issuing fractional Shares pay the
holder hereof an amount of cash equal to the fractional Share that otherwise
would be issuable multiplied by the Fair Market Value per Share (as defined in
Section 11(c)) at the time of exercise.
4. COVENANTS AND CONDITIONS. The above provisions are subject to the
following:
(a) Neither this Warrant nor the Shares have been registered under
the Securities Act of 1933, as amended ("Securities Act") or any state
securities laws ("Blue Sky Laws"). This Warrant and the underlying Shares have
been acquired for investment purposes and not with a view to distribution or
resale and may not be sold or otherwise transferred (i) without an effective
registration statement for such Warrant under the Securities Act and such
applicable Blue Sky Laws, (ii) unless Holder shall have delivered to the Company
an opinion of counsel reasonably acceptable to the Company (which opinion shall
be in form, substance and scope customary for opinions of counsel in comparable
transactions) to the effect that the Warrant or such portion of the Warrant to
be sold or transferred may be sold or transferred under an exemption from such
registration, or (iii) unless sold under Rule 144 promulgated under the
Securities Act (or successor rule) and any applicable Blue Sky Laws. Transfer of
Shares issued upon the exercise of this Warrant shall be restricted in the same
manner and to the same extent as the Warrant and the certificates representing
such Shares shall, until such time as the Shares have been registered under the
Securities Act as contemplated pursuant to Section 12 hereof or otherwise may be
sold by Holder under Rule 144, bear substantially the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE
TRANSFERRED (I) UNTIL A REGISTRATION STATEMENT UNDER THE ACT OR
SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE
WITH REGARD THERETO, OR (II) UNLESS REGISTRATION UNDER SUCH
SECURITIES ACTS OR SUCH APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER.
The Holder hereof and the Company agree to execute such other documents and
instruments as counsel for the Company reasonably deems necessary to effect the
compliance of the issuance of this Warrant and any shares of Common Stock issued
upon exercise hereof with applicable federal and state securities laws.
(b) The Company covenants and agrees that all Shares which may be
issued upon exercise of this Warrant will, upon issuance and payment therefor,
be legally and validly issued and outstanding, fully paid and nonassessable,
free from all taxes,
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liens, charges and preemptive rights, if any, with respect thereto or to the
issuance thereof. The Company shall at all times reserve and keep available for
issuance upon the exercise of this Warrant such number of authorized but
unissued shares of Common Stock as will be sufficient to permit the exercise in
full of this Warrant.
5. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES ISSUABLE.
(a) COMMON STOCK REORGANIZATION. If the Company shall (i) subdivide
or consolidate its outstanding shares of Common Stock (or any class thereof)
into a greater or smaller number of shares, (ii) pay a dividend or make a
distribution on its Common Stock (or any class thereof) in shares of its Common
Stock, or (iii) issue by reclassification of its Common Stock (or any class
thereof) any shares of its Common Stock (any such event described in clauses
(i), (ii) or (iii) being called a "Common Stock Reorganization"), then the
Exercise Price and the number and type of securities for which this Warrant is
exercisable shall be adjusted immediately such that the Holder thereafter shall
be entitled to receive upon exercise of this Warrant the aggregate number and
type of securities that it would have received if this Warrant had been
exercised immediately prior to such Common Stock Reorganization.
(b) COMMON STOCK DISTRIBUTION. If the Company shall issue, sell,
distribute or otherwise grant any shares of Common Stock, other than (i)
pursuant to a Common Stock Reorganization, (ii) not more than an aggregate of
20,000 shares of Common Stock issued pursuant to a transaction approved by the
Board of Directors, (iii) an aggregate of not more than 3,500,000 shares issued
pursuant to the exercise of options or warrants for the purchase of Common Stock
outstanding on the date hereof or as reserved and ungranted as of the date
hereof pursuant to the 1996 Stock Option Plan or any similar stock option or
incentive plan of the Company approved by a majority of the Company's Board of
Directors and, as required, shareholders (the "Stock Plan"), (iv) shares of
Common Stock issued upon the conversion or exercise of the Series A Preferred
Stock, the warrant issued to Holder on April 1, 2003 or this Warrant; or (v)
shares of Common Stock and/or Option Securities (as defined below) issued in
connection with the acquisition of Guideline Research Corporation ("Guideline"),
including those shares of Common Stock issued to shareholders of Guideline as
part of the One Year Deferred Compensation Amount (as defined in that certain
Stock Purchase Agreement by and among Xxx X. Xxxxxxxxx, Xxxxxx La Terra,
Guideline Research Corporation and the Company or one of its wholly-owned
subsidiaries, dated as of April 1, 2003 (the "Acquisition Agreement"), but in
all cases excluding any shares of Common Stock issued by the Company in
connection with any indemnity obligations of the Company pursuant to the
Acquisition Agreement (any such issuance, sale, distribution or grant in (i)
through (v) being herein called a "Common Stock Distribution"), for a
consideration per share less than $1.25 per share (the "Investment Price") then
the Exercise Price shall be adjusted as follows: the Exercise Price immediately
prior to such Common Stock Distribution shall be multiplied by a fraction, the
numerator of which shall be the sum of (1) the number of fully-diluted shares of
Common Stock outstanding (assuming the conversion or exercise of all outstanding
securities convertible into or exercisable for shares of Common Stock) prior to
such Common Stock Distribution, plus (2) the number of shares of Common Stock
that the aggregate consideration received by the Company for such Common Stock
Distribution would purchase at the Investment Price, and the
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denominator of which shall be the sum of (1) the number of fully-diluted shares
of Common Stock outstanding (assuming the conversion or exercise of all
outstanding securities convertible into or exercisable for shares of Common
Stock) prior to Common Stock Distribution, plus (2) the number of shares of
Common Stock issued in such Common Stock Distribution.
(c) CONSIDERATION RECEIVED. In the case of the issuance, sale,
distribution or grant of Common Stock for cash, the consideration shall be
deemed to be the amount of cash paid therefor before deducting any reasonable
discounts, commissions or other expenses allowed, paid or incurred by this
corporation for any underwriting or otherwise in connection with the issuance
and sale thereof. In the case of the issuance, sale, distribution or grant of
the Common Stock for a consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair value thereof at
the time of such issuance or sale as determined in good faith by the Board of
Directors irrespective of any accounting treatment.
(d) CONVERTIBLE SECURITIES AND OPTION SECURITIES. Except to the
extent an adjustment has been previously made pursuant to this Section 5, if the
Company shall issue, sell, distribute or otherwise grant (including by
assumption):
(i) any stock or other securities convertible into or
exchangeable for Common Stock, whether or not the rights to exchange or
convert thereunder are immediately exercisable (such convertible or
exchangeable stock or securities being herein called "Convertible
Securities"), or
(ii) any rights to subscribe for or to purchase, or any warrants
or options (other than options to purchase shares of Common Stock
outstanding on the date hereof as reserved as of the date hereof and
ungranted pursuant to the Stock Option Plan) for the purchase of,
Common Stock or Convertible Securities, whether or not immediately
exercisable, (such rights, warrants or options being herein called
"Option Securities"),
and the lowest aggregate consideration per share for which Common Stock is
issuable upon the conversion or exercise of such Convertible Securities or
Option Securities (and, if applicable, upon conversion or exchange of
Convertible Securities issuable upon exercise of Option Securities) shall be
less than the Investment Price, then the Exercise Price shall be reduced to the
price determined in accordance with the formula provided above in Section 5(b).
In the case of the issuance, sale, distribution or grant of Convertible
Securities or Option Securities (i) the aggregate maximum number of shares of
Common Stock deliverable upon exercise of Option Securities (assuming the
satisfaction of any conditions to exercisability, including without limitation,
the passage of time, but without taking into account potential antidilution
adjustments) shall be deemed to have been issued at the time such Option
Securities were issued or granted and for a consideration equal to the
consideration (determined in the manner provided in Section 5(c)), if any,
received by the Company upon the issuance of such Option Securities plus the
minimum exercise price provided in such Option Securities (without taking into
account potential antidilution adjustments) for the Common Stock covered
thereby, and (ii) the aggregate maximum number of shares of Common Stock
deliverable
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upon conversion of, or in exchange (assuming the satisfaction of any conditions
or convertibility or exchangeability, including, without limitation, the passage
of time, but without taking into account potential antidilution adjustments)
for, any such Convertible Securities or upon the exercise of options to purchase
or rights to subscribe for such Convertible Securities and subsequent conversion
or exchange thereof shall be deemed to have been issued at the time such
securities were issued or such options or rights were issued and for a
consideration equal to the consideration, if any, received by the Company for
any such securities and related options or rights (excluding any cash received
on account of accrued interest or accrued dividends), plus the minimum
additional consideration, if any, to be received by the Company (without taking
into account potential antidilution adjustments) upon the conversion or exchange
of such securities or the exercise of any related options or rights (the
consideration in each case to be determined in the manner provided in Section
5(c)). If any of such Convertible Securities or Option Securities shall have
terminated, lapsed or expired prior to exercise, exchange or conversion, the
Exercise Price then in effect shall forthwith be readjusted (effective only with
respect to any exercise of this Warrant after such readjustment) to the Exercise
Price which would then be in effect had the adjustment not been made upon the
issuance, sale, distribution or grant of such Convertible Securities or Option
Securities. Nothing provided in this paragraph 5(d), however, shall cause any
adjustment in the Exercise Price solely due to the vesting of any Option
Securities that are outstanding on the date hereof.
(e) ADJUSTMENT IN NUMBER OF SHARES. Upon each adjustment to the
Exercise Price pursuant to subsection (a), (b) or (d) of this Section 5, this
Warrant shall thereafter evidence the right to receive upon payment of the
adjusted Exercise Price that number of Shares obtained by multiplying the number
of Shares previously issuable upon exercise of this Warrant by a fraction the
numerator of which is the Exercise Price prior to adjustment and the denominator
of which is the adjusted Exercise Price.
(f) CAPITAL REORGANIZATIONS. If there shall be any consolidation,
merger or amalgamation of the Company with another person or entity or any
acquisition of capital stock of the Company by means of a share exchange, other
than a consolidation, merger or share exchange in which the Company is the
continuing corporation or any sale or conveyance of the property of the Company
as an entirety or substantially as an entirety, or any reorganization or
recapitalization of the Company (any such event being called a "Capital
Reorganization"), then simultaneously with the consummation of such Capital
Reorganization the Holder of this Warrant shall be entitled to receive warrants
to purchase, on the same terms and conditions as are set forth in this Warrant,
the kind and amount of shares of stock and other securities and property
(including cash) which a holder of the number of Shares for which this Warrant
is exercisable immediately prior to such Capital Reorganization would be
entitled to receive pursuant to such Capital Reorganization. As a condition to
effecting any Capital Reorganization, the Company or the successor or surviving
corporation, as the case may be, shall assume by a supplemental agreement,
satisfactory in form, scope and substance to the Holder (which shall be mailed
or delivered to the Holder of this Warrant at the last address of such Holder
appearing on the books of the Company), the obligation to deliver to such Holder
such shares of stock, securities, cash or property as, in accordance with
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the foregoing provisions, such Holder may be entitled to purchase, and all other
obligations of the Company set forth in this Warrant.
(g) ADJUSTMENT RULES. Any adjustments pursuant to this Section 5
shall be made successively whenever an event referred to herein shall occur. No
adjustment shall be made pursuant to this Section 5 in respect of the issuance
from time to time of shares of Common Stock upon the exercise of this Warrant.
(h) PROCEEDINGS PRIOR TO ANY ACTION REQUIRING ADJUSTMENT. As a
condition precedent to the taking of any action which would require an
adjustment pursuant to this Section 5, the Company shall take any action which
may be necessary, including obtaining regulatory approvals or exemptions, in
order that the Company may thereafter validly and legally issue as fully paid
and nonassessable all shares of Common Stock which the Holder of this Warrant is
entitled to receive upon exercise thereof.
(i) NOTICE OF ADJUSTMENT. Not less than five (5) business days prior
to the record date or effective date, as the case may be, of any action which
requires or might require an adjustment or readjustment pursuant to this Section
5, the Company shall give notice to the Holder of such event, describing such
event in reasonable detail and specifying the record date or effective date, as
the case may be, and, if determinable, the required adjustment and the
computation thereof. If the required adjustment is not determinable at the time
of such notice, the Company shall give notice to the Holder of such adjustment
and computation promptly after such adjustment becomes determinable.
6. TRANSFER OF WARRANT. Subject to the provisions of Section 4 hereof,
this Warrant may be transferred, in whole or in part, to any person or business
entity, by presentation of the Warrant to the Company with written instructions
for such transfer; provided, however that the transfer shall be made in
compliance with all applicable state and federal securities laws and that Holder
shall give the Company not less than five (5) business days prior written notice
of such transfer. Upon such presentation for transfer, the Company shall
promptly execute and deliver a new Warrant or Warrants in the form hereof in the
name of the assignee or assignees and in the denominations specified in such
instructions. The Company shall pay all expenses incurred by it in connection
with the preparation, issuance and delivery of Warrants under this Section.
Notwithstanding the foregoing, neither this Warrant nor any rights hereunder
shall be transferred to any person or business entity that has been reasonably
determined by the Company's Board of Directors to be a competitor of the
Company, or any of its subsidiaries.
7. WARRANT HOLDER NOT SHAREHOLDER; RIGHTS OFFERING; PREEMPTIVE RIGHTS.
Except as otherwise provided herein, this Warrant does not confer upon the
Holder, as such, any right whatsoever as a shareholder of the Company.
Notwithstanding the foregoing, (a) if the Company should offer to all of the
Company's shareholders the right to purchase any securities of the Company, then
all shares of Common Stock that are subject to this Warrant shall be deemed to
be outstanding and owned by the Holder and the Holder shall be entitled to
participate in such offer, and (b) without limitation to the foregoing, if the
Company shall offer to any of its shareholders or any other person(s) or
entity(ies) any equity securities of the Company (other than pursuant to an
exercise of Convertible Securities or Option Securities granted pursuant to the
Stock Plan), or any
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securities of the Company exercisable or exchangeable for, or convertible into,
equity securities of the Company (other than pursuant to the Stock Plan), that
are not registered pursuant to an effective registration statement under the
Securities Act, the Company shall offer to the Holder, on the same terms and
conditions as those offered to such shareholder(s), person(s) or entity(ies),
such number or amount of each class of securities as would equal the Holder's
pro rata portion (on a fully diluted basis) of the aggregate number or amount of
each class of securities offered by the Company (including those so offered to
the Holder), and the Holder shall be entitled, at its option, to purchase all or
any portion of the securities so offered by the Company to the Holder. The
foregoing sentence shall not apply to any securities issued to shareholders of
Guideline in connection with the One Year Deferred Consideration Amount or the
issuance of shares of Series A Preferred Stock pursuant to the dividend
requirements set forth in the Company's Certificate of Incorporation, as
amended. The Company shall not grant any preemptive rights with respect to any
of its capital stock if such preemptive rights are exercisable upon exercise of
this Warrant.
8. INTERIM DIVIDENDS. If the Company pays a dividend or makes a
distribution to the holders of its capital stock of any securities (other than
its capital stock) or property (including cash and securities of other
companies) of the Company, or any rights, options or warrants to purchase
securities (other than its capital stock) or property (including securities of
other companies) of the Company, then, simultaneously with the payment of such
dividend or the making of such distribution, and as a condition precedent to its
right to do so, it will pay or distribute to the Holder of this Warrant an
amount of property (including without limitation cash) and securities (including
without limitation securities of other companies) of the Company as would have
been received by such Holder had it exercised this Warrant and received all of
the Shares of Common Stock issuable upon the exercise of this Warrant
immediately prior to the record date (or other applicable date) used for
determining stockholders of the Company entitled to receive such dividend or
distribution.
9. CERTAIN NOTICES. In case at any time the Company shall propose to:
(a) declare any cash dividend upon its Common Stock;
(b) declare any dividend upon its Common Stock payable in stock or
make any special dividend or other distribution to the holders of its Common
Stock;
(c) offer generally for subscription to the holders of any of its
Common Stock any additional shares of stock of any class or other rights;
(d) reorganize, or reclassify the capital stock of the Company, or
consolidate, merge or otherwise combine with, or sell all or substantially all
of its assets to, another corporation;
(e) voluntarily or involuntarily dissolve, liquidate or wind up of
the affairs of the Company; or
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(f) redeem or purchase any shares of its capital stock or securities
convertible into its capital stock;
then, in any one or more of said cases, the Company shall give to the Holder, by
certified or registered mail, (i) at least thirty (30) days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, and (ii) in the case of such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, at least
thirty (30) days' prior written notice of the date when the same shall take
place. Any notice required by clause (i) shall also specify, in the case of any
such dividend, distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled thereto, and any notice required by
clause (ii) shall specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be.
10. PLACEMENT RIGHT
(a) EXERCISE OF PLACEMENT RIGHT. At any time on and after April 1,
2009 and for a period of four (4) years thereafter, each Holder shall have the
right (a "Placement Right") to require that the Company use commercially
reasonable best efforts to complete a private placement of all or any portion of
the Warrant or Shares then owned by such Holder to one or more third parties at
a price per share of not less than the Placement Purchase Price (as determined
below) (the "Private Placement"), by delivery of a written notice to the Company
to the effect that such Holder is exercising a Placement Right under this
Section 10 (a "Placement Exercise Notice"). Upon receipt by the Company of a
Placement Exercise Notice, the Company will promptly (and in any event within
five (5) business days) give written notice (a "Company Notice") to each of the
other Holders, if any, that a Placement Exercise Notice has been received by the
Company. Each such other Holder will have the right to exercise a Placement
Right and require that the Company use commercially reasonable best efforts to
complete the Private Placement of all or any portion of the Warrant or Shares
held by such Holder by delivering written notice to the Company within ten (10)
days following receipt of the Company Notice. All such notices delivered by such
other Holders will be deemed to have been delivered as of the date of the
Placement Exercise Notice and will be deemed to be an exercise of a Placement
Right by each such other Holder as of such date. Upon the exercise of a
Placement Right by a Holder, the purchase price payable by any such third party
to such Holders exercising their Placement Right hereunder (a "Placement
Purchase Price") shall be as follows:
(i) in the case of such Holder's Warrant, an amount determined
by subtracting (A) the aggregate Exercise Price then in effect for the portion
of such Holder's Warrant with respect to which the Placement Right is being
exercised from (B) the product of (1) the Fair Market Value per Share as of the
date of exercise of the Placement Right (i.e., the date of receipt of the
Placement Exercise Notice) MULTIPLIED BY
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(2) the number of Shares that would be received upon exercise of the portion of
the Holder's Warrant with respect to which the Placement Right is being
exercised; and
(ii) in the case of Shares, an amount equal to the product of
(A) the Fair Market Value per Share as of the date of exercise of the Placement
Right, MULTIPLIED BY (B) the number of Shares with respect to which the
Placement Right is being exercised.
Promptly and in any event within five (5) business days following the Company's
receipt of a Placement Exercise Notice, the Company shall initiate the process
for determination of the Fair Market Value per Share, shall use its commercially
reasonable best efforts to cause such process to proceed expeditiously, and in
any event, shall cause such process to be completed within thirty (30) days of
the receipt of the Placement Exercise Notice, and shall give prompt written
notice of the determination thereof to each Holder. In the event the Company is
unable to complete a Private Placement of the Warrant and Shares to which the
Placement Right is being exercised (the "Placement Shares") within six (6)
months of the Company's receipt of the Placement Exercise Notice, the Company
shall promptly grant (but in any event within five (5) business days following
the expiration of such six-month period), each Holder a warrant to purchase the
number of shares of Common Stock equal to the product of (x) and (y), where (x)
equals the product of (A) and (B), where (A) equals the number of Shares (as
adjusted pursuant to Section 5 of this Agreement) held by such Holder as of the
date of the exercise of the Placement Right and (B) equals 10%; and (y) equals a
fraction, the numerator of which is the number of Placement Shares not sold in
the Private Placement and the denominator of which is the total number of
Placement Shares (an "Additional Warrant"). Additionally, following the
completion of each six-month period thereafter, for so long as the Company fails
to complete the sale of all the Placement Shares in a Private Placement, the
Company shall promptly grant (but in any event within 5 business days following
the expiration of each six-month period), each Holder an Additional Warrant. The
exercise price per share for which all or any of the shares may be purchased
pursuant to the terms of each Additional Warrant shall be one cent ($0.01), and
each Additional Warrant shall be exercisable at any time from the date of their
respective grant date until ten (10) years from the date thereof. In the event
the Company cannot complete the Private Placement for all of the Placement
Shares within any six-month period following the Company's receipt of any
Placement Exercise Notice as required by this Section 10, the Company shall use
its best efforts to complete the Private Placement with respect to the maximum
possible number of Placement Shares ratably among the Holders requesting the
Private Placement based upon the number of Shares held by them. The Placement
Shares not purchased in any Private Placement shall remain entitled to all the
rights and preferences provided herein and the holders of such Placement Shares
shall each receive Additional Warrants as set forth above.
(b) CLOSING. Each closing of the purchase and sale of any Warrant or
Shares pursuant to this Section 10 shall take place on a date mutually
acceptable to the third party purchaser and the Holder(s) (a "Placement Closing
Date"). Payment of the Placement Purchase Price shall be due and payable in full
on the Placement Closing Date. The closing shall take place at 10:00 a.m. on the
Placement Closing Date at the offices of the Company or at such other location
as mutually determined by the third party
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purchaser and the Holder(s). The Placement Purchase Price as may be paid under
applicable law shall be paid in full at each such closing, by wire transfer of
immediately available federal funds.
(c) FAIR MARKET VALUE PER SHARE. "Fair Market Value per Share" as of
any date shall mean an amount per Share issued or issuable pursuant to this
Warrant determined as follows: (i) if the Common Stock is traded on a securities
exchange or through NASDAQ Stock Market, the Fair Market Value per Share shall
be deemed to be the average of the closing prices of the Common Stock on such
exchange over the ten (10) trading day period ending two (2) trading days prior
to the delivery of the Placement Exercise Notice; (ii) if the Common Stock is
actively traded over-the-counter, the Fair Market Value per Share shall be
deemed to be the average of the closing bid prices over the ten (10) trading day
period ending two (2) trading days prior to the delivery of the Placement
Exercise Notice and (iii) if there is no active public market for the Common
Stock, the Fair Market Value per Share shall be determined by an independent
competent appraiser mutually agreed to by the Company and the Holders of at
least a majority of the shares of Common Stock issued or issuable pursuant to
the Warrant requesting the Private Placement (the "Requisite Majority"). In the
event the Company and the Requisite Majority cannot mutually agree upon an
independent appraiser within fifteen (15) days of receipt by the Company of a
Placement Exercise Notice, the Company and the Requisite Majority will each
select an independent competent appraiser of national reputation to determine
the Fair Market Value per Share. The respective appraisals will be provided to
the Company and the Holders requesting the Private Placement promptly upon
completion. If the Fair Market Value per Share appraisals are within 10% of one
another, the Fair Market Value per Share shall be the average of the two
appraisals. In the event the appraisal valuations differ by more than ten
percent (10%), the two appraisers chosen by the Company and the Requisite
Majority, respectively, shall choose a third independent competent appraiser of
national reputation and the third appraiser shall conduct an appraisal to
determine the Fair Market Value per Share (the "Third Appraisal"). Upon
completion, the Third Appraisal shall be promptly delivered to the Company and
the Holders requesting the Private Placement. The Third Appraisal valuation
shall be averaged with the prior appraisal that is closer in value to the Third
Appraisal. The average of these two appraisals shall be the Fair Market Value
per Share and shall be binding on the Company and the Holders requesting the
Private Placement. All appraisals required herein shall be paid for by the
Company. In determining the Fair Market Value per Share, each of the appraisers
shall evaluate the Company as a whole, on a going concern basis, without
application of any discount whatsoever, including any discount for a minority
ownership interest and/or lack of marketability of such interest. In determining
the Fair Market Value per Share pursuant to this Section 10(c), none of the
appraisers shall take into account or otherwise make any discount in respect of
(i) any restriction on the transfer of the Shares, any other shares of Common
Stock of the Company or this Warrant, (ii) the fact that this Warrant and the
Shares represent a minority interest in the Company, (iii) any lack of liquidity
of the Shares, any other shares of Common Stock of the Company or this Warrant
due to the fact that there may not be a public or private market therefor, (iv)
any rights of the Company set forth in this Warrant or (v) the voting rights or
status of the Shares, any other shares of Common Stock of the Company or this
Warrant, whether under the certificate of incorporation or bylaws of the
Company, by agreement or otherwise.
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11. REGISTRATION RIGHTS. As set forth in that certain Investor's Rights
Agreement, as amended, between the Company and the Holder, dated as of April 1,
2003 and amended as of July 2, 2003 (the "Investor's Rights Agreement"), each of
the Holders shall have certain rights to require the Company to register the
Shares under the Securities Act pursuant to an effective registration statement.
12. CO-SALE RIGHTS. As set forth in the Investor's Rights Agreement,
each of the Holders shall have certain rights of co-sale with respect to any
transfer of Common Stock by any of the Major Shareholders (as defined in the
Investor's Rights Agreement).
13. SUCCESSORS. All the covenants and provisions of this Warrant by or
for the benefit of the Company or the Holder shall bind and inure to the benefit
of their respective successors and assigns, including those by operation of law,
merger, consolidation or as otherwise provided in Section 5(e).
14. SURVIVAL. The rights of the Holder under the Warrant, and the
covenants and agreements of the Company set forth in this Warrant for the
benefit of the Holder, other than Sections 5, 7, 8, 15, and 19, shall survive
exercise of all or any portion of this Warrant and shall inure to the Holder of
any Shares issued upon exercise of this Warrant. Notwithstanding the foregoing,
following exercise of all shares exerciseable under the Warrant, Sections 5, 6
and 8 shall become null and void with no further force or effect.
15. ARTICLE AND SECTION HEADINGS. Numbered and titled article and
section headings are for convenience only and shall not be construed as
amplifying or limiting any of the provisions of this Warrant.
16. NOTICE. Any and all notices, elections or demands permitted or
required to be made under this Warrant shall be in writing signed by the party
giving such notice, election or demand and shall be delivered personally, by
telecopy or sent by certified mail or overnight via nationally recognized
courier service (such as FedEx), to the other party at the address set forth
below, or at such other address as may be supplied in writing and of which
receipt has been acknowledged in writing. The date of personal delivery or
telecopy or two (2) business days after the date of mailing (or the next
business day after delivery to such courier service), as the case may be, shall
be the date of such notice, election or demand. For the purposes of this
Warrant:
The Address of Holder is: c/o Petra Capital Partners
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. X'Xxxxx III
Telecopy No.: (000) 000-0000
with a copy to: Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx III
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Telecopy No.:(000) 000-0000
The Address of Company is: FIND/SVP, Inc.
000 Xxxxxx xx xxx Xxxxxxxx, 0xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopy No.: (212) 645 - 7681
with a copy to: Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy No.: (212) 245 - 3009
17. SEVERABILITY. If any provision(s) of this Warrant or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Warrant and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
18. GOVERNING LAW AND AMENDMENTS. This Warrant shall be construed and
enforced under the laws of the State of New York applicable to contracts to be
wholly performed in such State. No amendment or modification hereof shall be
effective except in a writing executed by each of the parties hereto.
19. COUNTERPARTS. This Warrant may be executed in any number of
counterparts and by different parties to this Warrant in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same Warrant.
20. WAIVER OF TRIAL BY JURY. HOLDER AND THE COMPANY HEREBY KNOWINGLY
AND VOLUNTARILY WITH THE BENEFIT OF COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS,
PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR TOR OR OTHERWISE,
AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS WARRANT. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS WARRANT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the
date first above written.
FIND/SVP, INC.
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx, Chief Executive Officer
PETRA MEZZANINE FUND, L.P.,
By: Petra Partners, LLC, its general partner
By: /s/ Xxxxxx X. X'Xxxxx III,
------------------------------------
Xxxxxx X. X'Xxxxx III,
Managing Member
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