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Exhibit B
THIS WARRANT HAS BEEN ISSUED IN RELIANCE UPON THE REPRESENTATION OF THE HOLDER
THAT IT HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TOWARDS
THE RESALE OR OTHER DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR THE SHARES
ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
THIS DOCUMENT AND THE INDEBTEDNESS OR OTHER OBLIGATION DESCRIBED HEREIN OR
EVIDENCED HEREBY IS SUBORDINATED TO CERTAIN SENIOR INDEBTEDNESS IN THE MANNER
AND TO THE EXTENT SET FORTH IN A SUBORDINATION AGREEMENT DATED AS OF OCTOBER 31,
1996 BY AND AMONG FIND/SVP, INC., FIND/SVP PUBLISHED PRODUCTS, INC., XXXXXX XXXX
SBIC, L.P. AND STATE STREET BANK AND TRUST COMPANY.
No. 1 Certificate for 1 Warrant
FIND/SVP, INC.
Stock Subscription Warrant
Warrant to Subscribe October 31, 1996
for 900,000 shares
Void After October 31, 2006
THIS CERTIFIES that, for value received, XXXXXX XXXX SBIC,
L.P., a Delaware limited partnership, or its registered assigns, is entitled to
subscribe for and purchase from FIND/SVP, INC., a New York corporation
(hereinafter called the "Corporation"), at the price of $2.25 per share (such
price as from time to time adjusted as hereinafter provided being hereinafter
called the "Warrant Price"), at any time prior to October 31, 2006, up to
900,000 (subject to adjustment as hereinafter provided) fully paid and
nonassessable shares of Common Stock, par value $.0001 per share, of the
Corporation (hereinafter called the "Common Stock"), subject, however, to the
provisions and upon the terms and conditions hereinafter set forth. This Warrant
was issued pursuant to a certain Note and Warrant Purchase Agreement, dated as
of October 31, 1996 (the "Purchase Agreement"), among the Corporation, certain
subsidiaries of the Corporation, and Xxxxxx Xxxx SBIC, L.P. ("FS"), and the
rights and benefits contained therein shall inure to the benefit of all
subsequent holders of this Warrant. The Warrants issued pursuant to the Purchase
Agreement and any warrant or warrants subsequently issued upon exchange or
transfer thereof are hereinafter collectively called the "Warrants."
Section 1. Exercise of Warrant.
(a) Method of Exercise. The rights represented by this Warrant
may be exercised by the holder hereof, in whole at any time or from time to time
in part, but not as to a fractional share of Common Stock, by the surrender of
this Warrant (properly endorsed) at the office of the Corporation as it may
designate by
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notice in writing to the holder hereof at the address of such holder appearing
on the books of the Corporation, and as further provided below in this Section
l:
(i) Cash Exercise. By payment to the Corporation of the
Warrant Price in cash or by certified or official bank check, for each
share being purchased;
(ii) Surrender of Notes. By surrender to the Corporation for
cancellation of Initial Notes, Mandatory Notes or Option Notes (as each
such term is defined in the Purchase Agreement), or of any portion of
an Initial Note, a Mandatory Note or an Option Note, for which credit
shall be given toward the Warrant Price for each share being acquired
on a dollar-for-dollar basis with reference to the principal amount
cancelled;
(iii) Net Issue Exercise. If no Initial Notes, Mandatory Notes
or Option Notes (as those terms are defined in the Purchase Agreement)
are outstanding, by an election to receive shares the aggregate fair
market value of which as of the date of exercise is equal to the fair
market value of this Warrant (or the portion thereof being cancelled)
on such date, in which event the Corporation, upon receipt of notice of
such election, shall issue to the holder hereof a number of shares of
the Corporation's Common Stock equal to (A) the number of shares of
Common Stock acquirable upon exercise of all or any portion of this
Warrant being cancelled, as at such date, multiplied by (B) the balance
remaining after deducting (x) the Warrant Price, as in effect on such
date, from (y) the fair market value of one share of the Corporation's
Common Stock as at such date and dividing the result by (C) the fair
market value of one share of the Corporation's Common Stock as at such
date; or
(iv) Combined Payment Method. By satisfaction of the Warrant
Price for each share being acquired in any combination of two or more
of the methods described in clauses (i), (ii) and (iii) above.
(b) Definition of Fair Market Value. For the purposes of this
Section 1, "fair market value" shall mean, as to any security, as follows: if
that security is listed or admitted to trading on one or more national
securities exchanges, the average of the last reported sales prices per share
regular way or, in case no such reported sales takes place on any such day, the
average of the last reported bid and asked prices per share regular way, in
either case on the principal national securities exchange on which that security
is listed or admitted to trading, for the 60 trading days immediately preceding
the date upon which
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the fair market value is determined (the "Determination Date"); if that security
is not listed or admitted to trading on a national securities exchange but is
quoted by the NASDAQ Stock Market ("NASDAQ"), the average of the last reported
sales prices per share regular way or, in case no reported sale takes place on
any such day or the last reported sales prices are not then quoted by NASDAQ,
the average for each such day of the last reported bid and asked prices per
share, for the 60 trading days immediately preceding the Determination Date as
furnished by the National Quotation Bureau Incorporated or any similar successor
organization; and if that security is not listed or admitted to trading on a
national securities exchange or quoted by NASDAQ or any other nationally
recognized quotation service, the "fair market value" shall be the fair value
thereof determined jointly by the Corporation and the registered holders of
Warrants outstanding representing a majority of the shares of Common Stock
issuable upon exercise of the Warrants; provided, however, that if such parties
are unable to reach agreement within 60 days after such determination becomes
necessary, the "fair market value" shall equal the fair market value of all
outstanding shares of Common Stock of the Corporation divided by the number of
shares of Common Stock outstanding, such fair market value to be determined in
good faith by an independent investment banking firm selected jointly by the
Corporation and the registered holders of Warrants outstanding representing a
majority of the shares of Common Stock issuable upon exercise of the Warrants
or, if that selection cannot be made within 15 days, by an independent
investment banking firm selected by the American Arbitration Association in
accordance with its rules. The fees and expenses of any such investment banking
firm shall be shared and paid equally by the Corporation and the holder(s) of
such Warrants who have required valuation. Anything in this paragraph (b) to the
contrary notwithstanding, the fair market value of this Warrant or any portion
thereof as of any Determination Date shall be equal to (i) the fair market value
of the shares of Common Stock issuable upon exercise of this Warrant (or such
portion thereof), (determined in accordance with the foregoing provisions of
this paragraph (b)); minus (ii) the aggregate Warrant Exercise Price of the
Warrant (or such portion thereof).
(c) Delivery of Certificates, Etc. In the event of any
exercise of the rights represented by this Warrant, a certificate or
certificates for the shares of Common Stock so purchased, registered in the name
of the holder, shall be delivered to the holder hereof within a reasonable time,
not exceeding ten days, after the rights represented by this Warrant shall have
been so exercised; and, unless this Warrant has expired, a new Warrant
representing the number of shares (except a remaining fractional share), if any,
with respect to which this Warrant shall not then have been exercised shall also
be issued
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to the holder hereof within such time. The person in whose name any certificate
for shares of Common Stock is issued upon exercise of this Warrant shall for all
purposes be deemed to have become the holder of record of such shares on the
date on which the Warrant was surrendered and payment of the Warrant Price and
any applicable taxes was made, except that, if the date of such surrender and
payment is a date on which the stock transfer books of the Corporation are
closed, such person shall be deemed to have become the holder of such shares at
the close of business on the next succeeding date on which the stock transfer
books are open.
Section 2. Put Right; Subordination.
(a) Put Right for Warrants. If for ten of the
twelve months immediately preceding October 31, 2001, the Common Stock does not
have a daily average trading volume of at least 25,000 shares, as reported each
day in The Wall Street Journal (or other national business publication) and any
Warrants remain outstanding, then the holders of the Warrants shall have the
option (the "Put Right") commencing on October 31, 2001 and expiring on December
31, 2001 (the "Put Period") to sell to the Corporation, and the Corporation
shall have the obligation to purchase, any or all outstanding Warrants, at a
price equal to the fair market value of the Warrants (as such term is defined in
Section 1(b) hereof) (the "Put Payment Amount"). To exercise its Put Right, such
holder shall notify the Corporation in writing during the Put Period of its
intention to exercise such Put Right. Within ten days following delivery of such
Notice, a closing shall take place; at such closing such holder shall surrender
the Warrants with respect to which the Put Right has been exercised, and the
Corporation shall pay to such holder one-third (1/3) of the Put Payment Amount
in cash, and the remainder of the Put Payment Amount shall be paid in two equal
installments on each of the first and second anniversary of such closing, plus
interest at the annual rate of 10%, payable at the time of each installment.
(b) Subordination. (i) The obligation of the
Corporation to pay the Put Payment Amount, shall be subordinate and junior in
right of payment to the extent set forth in the following paragraphs (A), (B)
and (C) to all Senior Debt. As used herein, "Senior Debt" means the principal
of, premium, if any, and interest (including post-petition interest at the
contract rate in any bankruptcy, insolvency or similar proceeding with respect
to the Corporation) on, and other amounts payable on or in connection with
indebtedness for money borrowed by the Corporation, whether or not outstanding
on the date or this Note, from, or capital lease obligations payable to, any
bank or other financial institution regularly engaged in the business of making
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loans or extending credit; provided, that Senior Debt shall not include any such
indebtedness or capital lease obligations which (i) is guaranteed by any other
entity or person (other than a subsidiary of the Corporation); (ii) is
convertible into equity of the Corporation or any subsidiary of the Corporation
(a "Subsidiary") or which was purchased from the Corporation or any Subsidiary
by such bank or financial institution along with capital stock, warrants or
other rights to receive an equity interest, profit participation or similar
rights in the Corporation or such Subsidiary; or (iii) provides in any
documentation evidencing such indebtedness or capital lease obligation that such
indebtedness or capital lease obligation is not superior in right of payment to
the Put Payment Amount.
(A) In the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceedings, or any receivership
proceedings in connection therewith, relative to the Corporation or its
respective creditors or property, and in the event of any proceedings
for voluntary liquidation, dissolution or other winding up of the
Corporation, whether or not involving insolvency or bankruptcy
proceedings, then all Senior Debt shall first be paid in full, before
any payment on account of the Put Payment Amount.
(B) In any of the proceedings referred to in paragraph (A)
above, any payment or distribution of any kind or character, whether in
cash, property, stock or obligations which may be payable or
deliverable in respect of this Warrant shall be paid or delivered
directly to the holders of Senior Debt for application in payment
thereof, unless and until all Senior Debt shall have been paid in full.
(C) In the event (1) the Corporation shall default under any
Senior Debt obligation and the effect of such default is to accelerate
the maturity of such obligation, (2) the Corporation shall default
under any Senior Debt obligation and as a result thereof the holder
thereof shall cause such obligation to become due prior to the stated
maturity thereof, (3) the Corporation shall not pay a Senior Debt
obligation at maturity or (4) the Corporation shall not make any
payment of principal or interest under any document evidencing Senior
Debt when due, then upon the occurrence of receipt by the holder of
this Warrant of written notice from the holder of such Senior Debt, no
such payment may be made by the Corporation upon or in respect of the
Put Payment Amount for the period (the "Payment Blockage Period")
commencing on the date of receipt of such notice and ending 179 days
thereafter (unless such Payment Blockage Period shall be terminated
earlier by written notice to the holder
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hereof from the holder of such Senior Debt commencing the Payment
Blockage Period). Notwithstanding anything herein to the contrary, in
no event shall a Payment Blockage Period extend beyond 179 days from
the date the Put Payment Amount was due. Not more than one Payment
Blockage Period with respect to the Put Payment Amount may be commenced
during any period of 360 consecutive days. For all purposes of this
Section 2(b)(i)(C), no event of default which existed or was continuing
on the date of the commencement of any Payment Blockage Period with
respect to Senior Debt initiating such Payment Blockage Period shall
be, or be made, the basis for the commencement of a second Payment
Blockage Period by the holder of such Senior Debt whether or not within
a period of 360 consecutive days unless such event of default shall
have been cured or waived for a period of not less than 30 consecutive
days.
(ii) Subject to the payment in full of all Senior Debt as
aforesaid, the holder of this Warrant shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of any kind or
character, whether in cash, property, stock or obligations, which may be payable
or deliverable to the holders of Senior Debt, until the Put Payment Amount has
been paid or the Put Period shall have expired and no Put Right shall have been
exercised, and, as between the Corporation, its creditors other than the holders
of Senior Debt, and the holders of this Warrant, no such payment or distribution
made to the holders of Senior Debt by virtue of this Section 2(b) which
otherwise would have been made to the holder of this Warrant shall be deemed a
payment by the Corporation on account of the Senior Debt, it being understood
that the provisions of this Section 2(b) are and are intended solely for the
purposes of defining the relative rights of the holder of this Warrant, on the
one hand, and the holders of the Senior Debt, on the other hand. Subject to the
rights, if any, under this Section 2(b) of holders of Senior Debt to receive
cash, property, stock or obligations otherwise payable or deliverable to the
holder of this Warrant, nothing herein shall either impair, as between the
Corporation and the holder of this Warrant, the obligations of the Corporation,
which are unconditional and absolute, to pay to the holder hereof the Put
Payment Amount in accordance with the terms and provisions of this Warrant or
prevent the holder of this Warrant from exercising all remedies otherwise
permitted by applicable law or hereunder upon default hereunder.
(iii) Notwithstanding any provision contained herein to the
contrary, the obligation to pay the Put Payment Amount shall not (i) be
subordinated to claims of any trade creditors of the Corporation or (ii) be
subordinated in right of payment to the payment of any existing or future debt
of the
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Corporation which is not Senior Debt; but rather shall rank equally with all
existing and future unsecured debt of the Corporation except for such debt as
may be subordinate thereto.
Section 3. Early Expiration of Warrants. If (a) after the date
hereof the Corporation completes a firm underwritten secondary public offering
at a price to public of $7.00 or more per share of Common Stock, and gross
proceeds to the Corporation therefrom equals or exceeds $20 million, and (b)
within 60 days after the closing of the sale of such shares, the Corporation
notifies the holder of this Warrant in writing that the Warrants will expire at
5:00 p.m. NY time on the 60th day after such holder's receipt of such notice
then this Warrant shall expire at such time.
Section 4. Adjustment of Warrant Price and Number of
Shares.
(a) In General. The number of shares of Common Stock
for which this Warrant is exercisable, and the price at which such shares may be
purchased upon exercise of this Warrant, shall be subject to adjustment from
time to time as set forth in this Section 4. The Corporation shall give the
Holder hereof notice of any event described below which requires an adjustment
pursuant to this Section 4 at the time of such event.
(b) Dividends, Subdivisions, Combinations and
Issuances. In the event that the Corporation subsequent to the date of issuance
hereof shall:
(i) declare a dividend upon, or make any distribution
in respect of, any of its stock, payable in Common Stock, securities convertible
or exchangeable into Common Stock ("Convertible Securities") or rights to
purchase Common Stock ("Stock Purchase Rights"), or
(ii) subdivide its outstanding shares of Common Stock
into a larger number of shares of Common Stock, or
(iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock,
then (i) the number of shares of Common Stock for which this Warrant is
exercisable immediately after the occurrence of any such event shall be adjusted
to equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the occurrence of such event would own or be entitled to
receive after the happening of such event (assuming the conversion of all
Convertible Securities or exercise in full of
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Stock Purchase Rights, as the case may be, at the time of issuance of such
Convertible Securities or Stock Purchase Rights by the record holder thereof)
and (ii) the Warrant Price shall be adjusted to equal the Warrant Price
multiplied by a fraction, the numerator of which shall be the number of shares
of Common Stock for which this Warrant is exercisable immediately prior to the
adjustment and the denominator of which shall be the number of shares for which
this Warrant is exercisable immediately after such adjustment.
(c) Readjustment of Warrant Price. In the event the
rate at which any Convertible Securities which are issued pursuant to Section
4(b)(i) above are convertible into or exchangeable for additional shares of
Common Stock shall change, the Warrant Price and the number of shares of Common
Stock for which this Warrant may be exercised in effect at the time of such
event shall forthwith be readjusted to the Warrant Price and number of shares of
Common Stock which would have been in effect at such time had such Convertible
Securities provided for such conversion rate at the time initially issued. On
the expiration of any such Stock Purchase Rights not exercised or of any such
right to convert or exchange under any such Convertible Securities not
exercised, (i) the Warrant Price then in effect hereunder shall forthwith be
increased to the Warrant Price which would have been in effect at the time of
such expiration or termination had such Stock Purchase Rights or Convertible
Securities never been issued, and (ii) the number of shares of Common Stock for
which this Warrant may be exercised then in effect hereunder shall forthwith be
decreased to the number of shares of Common Stock which would have been in
effect at the time of such expiration or termination had such Stock Purchase
Rights or Convertible Securities never been issued. No readjustment of the
Warrant Price pursuant to this Subsection (c) shall have the effect of
increasing the Warrant Price by an amount in excess of the adjustment originally
made to the Warrant Price in respect of the issue, sale or grant of the
applicable Stock Purchase Rights or Convertible Securities.
(d) No Adjustments under Certain Circumstances.
Anything herein to the contrary notwithstanding, the Corporation shall not be
required to make any adjustment of the Warrant Price in the case of:
(i) the issuance of shares of Common Stock upon the
exercise in whole or part of the Warrants issued pursuant to the Purchase
Agreement; or
(ii) the declaration of a dividend on or the
distribution in respect of any of its Stock, payable in
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Convertible Securities or Stock Purchase Rights if at the time of such
declaration or distribution such Convertible Securities or Stock Purchase Rights
are issued to all of the holders of the Warrant based upon the number of shares
of Common Stock for which this Warrant is exercisable at the time of such
declaration or distribution; provided, however, that such Convertible Securities
may not be converted and such Stock Purchase Rights may not be exercised until
the right to purchase shares of Common Stock on which such Convertible
Securities or Stock Purchase Rights were issued is exercised pursuant to the
terms of this Warrant.
(e) Record Date. In case the Corporation shall take a
record of the holders of its Common Stock for the purpose of entitling them (i)
to receive a dividend or other distribution payable in Common Stock, Stock
Purchase Rights or Convertible Securities, or (ii) to subscribe for or purchase
Common Stock, Stock Purchase Rights or Convertible Securities, then such record
date shall be deemed to be the date of the issue or sale of the shares of Common
Stock deemed to have been issued or sold upon the declaration of such dividend
or the making of such other distribution or the date of the granting of such
right of subscription or purchase, as the case may be.
(f) Reorganization, Reclassification, Consolidation,
Merger or Sale. If any capital reorganization or reclassification of the capital
stock of the Corporation or any consolidation, merger or share exchange of the
Corporation with another corporation, trust, limited liability company, any form
of partnership or any other business entity, or the sale, lease, abandonment,
transfer or other disposal of all or substantially all of its assets to another
corporation, trust, limited liability company, any form of partnership or any
other business entity, or the sale of all or substantially all of the
Outstanding Common Stock of the Corporation shall be effected in such a way that
holders of Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provisions shall be made whereby the holder of this Warrant shall
thereafter have the right to receive upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock of the
Corporation immediately theretofore receivable upon the exercise of this
Warrant, the kind and amount of shares of stock, securities or assets (including
cash) as may be issued or payable upon such reorganization, reclassification,
consolidation, merger or sale with respect to or in exchange for a number of
outstanding shares of such Common Stock ("Successor Securities") equal to the
number of shares of such stock immediately theretofore so receivable upon the
exercise of this Warrant had such reorganization,
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reclassification, consolidation, merger or sale not taken place, and in any such
case appropriate provision shall be made with respect to the rights and
interests of such holder to the end that the provisions hereof shall thereafter
be applicable, as nearly as may be, in relation to any shares of stock,
securities or assets thereafter deliverable upon the exercise of such exercise
rights. In the event of a merger or consolidation of the Corporation as a result
of which a greater or lesser number of shares of common stock of the surviving
corporation are issuable to holders of Common Stock of the Corporation
outstanding immediately prior to such merger or consolidation, the Warrant Price
in effect immediately prior to such merger or consolidation shall be adjusted in
the same manner as though there were a subdivision or combination of the
outstanding shares of Common Stock of the Corporation. The Corporation will not
effect any such consolidation, merger or any sale of all or substantially all of
its assets of properties, unless prior to the consummation thereof the successor
corporation (if other than the Corporation) resulting from such consolidation or
merger or the corporation purchasing such assets or the issuer of the Successor
Securities, if other than such successor corporation, shall assume, by written
instrument executed and mailed or delivered to the holder of this Warrant (in
form satisfactory to such holder) at the last address of such holder appearing
on the books of the Corporation, (i) the obligation to deliver to such holder
such shares of stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to receive and (ii) all of the
obligations of the Corporation with respect to any Registration Rights Agreement
between any holder of this Warrant and the Corporation including the
Registration Rights Agreement contemplated by the Purchase Agreement and
attached thereto as Exhibit C.
(g) Notice of Adjustment. Upon any adjustment of the
Warrant Price, then and in each such case, the Corporation shall give written
notice thereof, by first class mail, postage prepaid, addressed to each holder
of the Warrants at the address of such holder as shown on the books of the
Corporation, which notice shall state the Warrant Price resulting from such
adjustment, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(h) Certain Events. If any event occurs as to which
in the opinion of the Board of Directors of the Corporation the other provisions
of this Section 4 are not strictly applicable or if strictly applicable would
not fairly protect the exercise rights of this Warrant, in accordance with the
essential intent and principles of such provisions to protect against dilution,
then such Board of Directors shall in good faith make an adjustment in the
application of such provisions, in
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accordance with such essential intent and principles, so as to protect such
exercise rights as aforesaid.
(i) Stock to Be Reserved. The Corporation will at all
times reserve and keep available out of its authorized Common Stock or its
treasury shares, solely for the purpose of issue upon the exercise of this
Warrant as herein provided, such number of shares of Common Stock as shall then
be issuable upon the exercise of this Warrant. The Corporation covenants that
all shares of Common Stock which shall be so issued shall be duly and validly
issued and fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof, and, without limiting the generality
of the foregoing, the Corporation covenants that it will from time to time take
all such action as may be requisite to assure that the par value per share of
the Common Stock is at all times equal to or less than the effective Warrant
Price. The Corporation will take all such action as may be necessary to assure
that all such shares of Common Stock may be so issued without violation of any
applicable law or regulation, or of any requirements of any national securities
exchange upon which the Common Stock of the Corporation may be listed. The
Corporation will not take any action which results in any adjustment of the
Warrant Price if the total number of shares of Common Stock issued and issuable
after such action upon exercise of this Warrant would exceed the total number of
shares of Common Stock then authorized by the Corporation's Articles of
Incorporation. The Corporation has not granted and will not grant any right of
first refusal with respect to shares issuable upon exercise of this Warrant, and
there are no preemptive rights associated with such shares.
(j) Issue Tax. The issuance of certificates for
shares of Common Stock upon exercise of the Warrants shall be made without
charge to the holders of such Warrants for any issuance tax in respect thereof
provided that the Corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of any holder of the Warrants.
(k) Closing of Books. The Corporation will at no time
close its transfer books against the transfer of the shares of Common Stock
issued or issuable upon the exercise of this Warrant in any manner which
interferes with the timely exercise of this Warrant.
(l) Definition of Common Stock. As used herein the
term "Common Stock" shall mean and include the Common Stock, par value $.0001
per share, of the Corporation as authorized on the date hereof and also any
capital stock of any class of the
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Corporation hereinafter authorized which shall not be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to participate in
dividends or in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; provided, however,
that the shares purchasable pursuant to this Warrant shall include only shares
designated as Common Stock, par value $.0001 per share, of the Corporation on
the date hereof or shares of any class or classes resulting from any
reclassification or reclassifications thereof which are not limited to any such
fixed sum or percentage and are not subject to redemption by the Corporation
and, in case at any time there shall be more than one such resulting class, the
shares of each class then so issuable shall be substantially in the proportion
which the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
Section 5. Notices of Record Dates. In the event of
(i) any taking by the Corporation of a record of the holders
of any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other distribution
(other than cash dividends out of earned surplus), or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other
right, or
(ii) any capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of the
Corporation or any transfer of all or substantially all the assets of
the Corporation to or consolidation or merger of the Corporation with
or into any other corporation, or
(iii) any voluntary or involuntary dissolution, liquidation or
winding-up of the Corporation,
then and in each such event the Corporation will give notice to the holder of
this Warrant specifying (i) the date on which any such record is to be taken for
the purpose of such dividend, distribution or right and stating the amount and
character of such dividend, distribution or right, and (ii) the date on which
any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of record of Common
Stock will be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation,
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merger, dissolution, liquidation or winding-up. Such notice shall be given at
least 20 days and not more than 90 days prior to the date therein specified, and
such notice shall state that the action in question or the record date is
subject to the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act") or to a favorable vote of
stockholders, if either is required.
Section 6. Registration Rights. The rights of the holder
hereof with respect to the registration under the Securities Act of 1933, as
amended, of the shares of Common Stock issuable upon the exercise of this
Warrant are set forth in the Registration Rights Agreement, dated as of October
31, 1996, between the Corporation and FS.
Section 7. No Stockholder Rights or Liabilities. This Warrant
shall not entitle the holder hereof to any voting rights or other rights as a
stockholder of the Corporation. No provision hereof, in the absence of
affirmative action by the holder hereof to purchase shares of Common Stock, and
no mere enumeration herein of the rights or privileges of the holder hereof,
shall give rise to any liability of such holder for the Warrant Price or as a
stockholder of the Corporation, whether such liability is asserted by the
Corporation or by creditors of the Corporation.
Section 8. Investment Representation and Legend. The holder,
by acceptance of the Warrant, represents and warrants to the Corporation that it
is acquiring the Warrant and the shares of Common Stock (or other securities)
issuable upon the exercise hereof for investment purposes only and not with a
view towards the resale or other distribution thereof and agrees that the
Corporation may affix upon this Warrant the following legend:
"This Warrant has been issued in reliance upon the
representation of the holder that it has been acquired for investment
purposes and not with a view towards the resale or other distribution
thereof. Neither this Warrant nor the shares issuable upon the exercise
of this Warrant have been registered under the Securities Act of 1933,
as amended."
The holder, by acceptance of this Warrant, further agrees that the Corporation
may affix the following legend to certificates for shares of Common Stock issued
upon exercise of this Warrant:
"The securities represented by this certificate have been
issued in reliance upon the representation of the holder that they have
been acquired for investment and not with a view toward the resale or
other distribution thereof, and have not been registered under the
Securities Act of
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1933, as amended. Neither the securities evidenced hereby, nor any
interest therein, may be offered, sold, transferred, encumbered or
otherwise disposed of unless either (i) there is an effective
registration statement under said Act relating thereto or (ii) the
Corporation has received an opinion of counsel, reasonably satisfactory
in form and substance to the Corporation, stating that such
registration is not required."
Section 9. Lost, Stolen, Mutilated or Destroyed Warrant. If
this Warrant is lost, stolen, mutilated or destroyed, the Corporation may, on
such terms as to indemnity or otherwise as it may in its discretion reasonably
impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as the Warrant so
lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an
original contractual obligation of the Corporation, whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
Section 10. Undertakings. Upon any issuance of shares of
Common Stock upon exercise of this Warrant, it shall be the Corporation's
responsibility to comply with the requirements of: (1) the Securities Act of
1933, as amended; (2) the Securities Exchange Act of 1934, as amended; (3) any
applicable listing requirements of any national securities exchange; (4) any
state securities regulation or "Blue Sky" laws; and (5) requirements under any
other law or regulation applicable to the issuance or transfer of such shares.
If required by the Corporation, in connection with each issuance of shares of
Common Stock upon exercise of this Warrant, the Warrant holder will give: (i)
assurances in writing, satisfactory to the Corporation, that such shares are not
being purchased with a view to the distribution thereof in violation of
applicable laws, (ii) sufficient information, in writing, to enable the
Corporation to rely on exemptions from the registration or qualification
requirements of applicable laws with respect to such exercise, and (iii) its
cooperation to the Corporation in connection with such compliance.
Section 11. Notices. All notices, requests and other
communications required or permitted to be given or delivered hereunder shall be
in writing, and shall be delivered, or shall be sent by certified or registered
mail, postage prepaid and addressed, if to the holder to such holder at the
address shown on such holder's Warrant or Warrant Shares or at such other
address as shall have been furnished to the Corporation by notice from such
holder. All notices, requests and other communications required or permitted to
be given or delivered hereunder shall be
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in writing, and shall be delivered, or shall be sent by certified or registered
mail, postage prepaid and addressed to the Corporation at such address as shall
have been furnished to the holder by notice from the Corporation.
IN WITNESS WHEREOF, Find/SVP, Inc. has executed this
Warrant on and as of the day and year first above written.
FIND/SVP, INC.
By /S/ Xxxxxx X. Xxxxxx
--------------------
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SUBSCRIPTION AGREEMENT
To:
Dated:
The undersigned, pursuant to the provisions set forth in the
within Warrant, hereby agrees to subscribe for and purchase __________ shares of
Common Stock covered by such Warrant, and makes payment herewith in full
therefor (at the price per share provided by such Warrant [in cash] [by
surrender of Initial Notes, Mandatory Notes or Option Notes (as each such term
is defined in the Note and Warrant Purchase Agreement, dated as of October 31,
1996 between the Corporation, Xxxxxx Xxxx SBIC, L.P. [as provided in Section
1(a)(iii) of such Warrant].
Signature ________________________
__________________________________
Address __________________________
__________________________________
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