Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of this 10th day of May, 2004 by and among Find/SVP, Inc., a New
York corporation (the "Company"), and the "Investors" named in that certain
Purchase Agreement by and among the Company and the Investors (the "Purchase
Agreement").
The parties hereby agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"AFFILIATE" means, with respect to any person, any other person which
directly or indirectly controls, is controlled by, or is under common control
with, such person.
"BUSINESS DAY" means a day, other than a Saturday or Sunday, on which
banks in New York City are open for the general transaction of business.
"COMMON STOCK" shall mean the Company's common stock, par value $0.0001
per share, and any securities into which such shares may hereinafter be
reclassified.
"INVESTORS" shall mean the Investors identified in the Purchase
Agreement and any Affiliate or permitted transferee of any Investor who is a
subsequent holder of any Warrants or Registrable Securities.
"PER SHARE SUBSCRIPTION PRICE" as to any Investor, shall mean, on any
date of determination, the quotient obtained by dividing (a) such Investor's
Subscription Amount plus the aggregate exercise price paid by the Investor in
connection with any Warrant exercise by such Investor on or prior to such date
by (b) the Shares acquired by the Investor on the Closing Date (as defined
below) plus the shares of Common Stock acquired by the Investor upon the
exercise of any Warrants exercised on or prior to such date of determination.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration
made by preparing and filing a Registration Statement or similar document in
compliance with the 1933 Act (as defined below), and the declaration or ordering
of effectiveness of such Registration Statement or document.
"REGISTRABLE SECURITIES" shall mean the Shares and the shares of Common
Stock issuable (i) upon the exercise of the Warrants, if any, and (ii) any other
securities issued or issuable with respect to or in exchange for Registrable
Securities; provided, that, a security shall cease to be a Registrable Security
upon (A) sale pursuant to a Registration Statement or Rule 144 under the 1933
Act, or (B) such security becoming eligible for sale by the Investors pursuant
to Rule 144(k).
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"REQUIRED INVESTORS" means the Investors holding a majority of the
Registrable Securities.
"SEC" means the U.S. Securities and Exchange Commission.
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"SHARES" means the shares of Common Stock issued pursuant to the
Purchase Agreement.
"SUBSCRIPTION AMOUNT" means for each Investor the aggregate amount
invested by such Investor pursuant to the Purchase Agreement as of the Closing
Date.
"1933 ACT" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"1934 ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"WARRANTS" means, the warrants to purchase shares of Common Stock
issued to the Investors pursuant to the Purchase Agreement, the form of which is
attached to the Purchase Agreement as Exhibit A.
"WARRANT SHARES" means the shares of Common Stock issuable upon the
exercise of the Warrants.
2. REGISTRATION.
(a) REGISTRATION STATEMENTS.
(i) Promptly following the closing of the purchase and sale
of the securities contemplated by the Purchase Agreement (the "Closing Date")
but no later than thirty-five (35) days after the Closing Date (the "Filing
Deadline"), the Company shall prepare and file with the SEC one Registration
Statement on Form X-0, X-0 or S-3 (or, if such Forms are not then available to
the Company, on such form of registration statement as is then available to
effect a registration for resale of the Registrable Securities, subject to the
Required Investors' consent not to be unreasonably withheld), covering the
resale of the Registrable Securities in an amount at least equal to the number
of Shares plus the number of shares of Common Stock necessary to permit the
exercise in full of the Warrants. Subject to SEC comments, such Registration
Statement shall include the plan of distribution attached hereto as EXHIBIT A.
Such Registration Statement also shall cover, to the extent allowable under the
1933 Act and the rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from stock
splits, stock dividends or similar transactions with respect to the Registrable
Securities. The Company shall use its commercially reasonable efforts to obtain
from each person who now has piggyback registration rights (other than Petra
Mezzanine Fund, L.P.) a waiver of those rights with respect to the Registration
Statement. The Registration Statement (and each amendment or supplement thereto,
and each request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investors and their counsel prior to its
filing or other submission. If a Registration Statement covering the
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Registrable Securities is not filed with the SEC on or prior to the Filing
Deadline, the Company will make pro rata payments to each Investor, as
liquidated damages and not as a penalty, in an amount equal to 1.25% of the
aggregate amount invested by such Investor for each 30-day period or pro rata
for any portion thereof following the date by which such Registration Statement
should have been filed for which no Registration Statement is filed with respect
to the Registrable Securities. Such payments shall be in partial compensation to
the Investors, and shall not constitute the Investors' exclusive remedy for such
events. Such payments shall be made to each Investor in cash.
(ii) ADDITIONAL REGISTRABLE SECURITIES. Upon the written
demand of any Investor and upon any change in the Warrant Price (as defined in
the Warrant) such that additional shares of Common Stock become issuable upon
the exercise of the Warrants, the Company shall prepare and file with the SEC
one or more Registration Statements on Form X-0, X-0 or S-3 or amend the
Registration Statement filed pursuant to clause (i) above, if such Registration
Statement has not previously been declared effective (or, if such Forms are not
then available to the Company, on such form of registration statement as is then
available to effect a registration for resale of such additional shares of
Common Stock (the "Additional Shares"), subject to the Required Investors'
consent not to be unreasonably withheld) covering the resale of the Additional
Shares, but only to the extent the Additional Shares are not at the time covered
by an effective Registration Statement. Such Registration Statement also shall
cover, to the extent allowable under the 1933 Act and the rules promulgated
thereunder (including Rule 416), such indeterminate number of additional shares
of Common Stock resulting from stock splits, stock dividends or similar
transactions with respect to the Additional Shares. The Company shall use its
commercially reasonable efforts to obtain from each person who now has piggyback
registration rights a waiver of those rights with respect to such Registration
Statement. The Registration Statement (and each amendment or supplement thereto,
and each request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investors and their counsel prior to its
filing or other submission. If a Registration Statement covering the Additional
Shares is required to be filed under this Section 2(a)(ii) and is not filed with
the SEC within five Business Days of the request of any Investor or after the
occurrence of any of the events specified in this Section 2(a)(ii), the Company
will make pro rata payments to each Investor, as liquidated damages and not as a
penalty, in an amount equal to the greater of (i) 1.25% of 50% of the Investor's
Subscription Amount or (ii) 1.25% of the product of (x) the Investor's Per Share
Subscription Price multiplied by (y) the sum of (i) the Shares and (ii) the
Warrant Shares then held by the Investor, for each 30-day period or pro rata for
any portion thereof following the date by which such Registration Statement
should have been filed for which no Registration Statement is filed with respect
to the Additional Shares. Such payments shall be in partial compensation to the
Investors, and shall not constitute the Investors' exclusive remedy for such
events. Such payments shall be made to each Investor in cash.
(b) EXPENSES. The Company will pay all expenses associated
with each registration, including filing and printing fees, the Company's
counsel and accounting fees and expenses, costs associated with clearing the
Registrable Securities for sale under applicable state securities laws, listing
fees, fees and expenses of one counsel to the Investors and the Investors'
reasonable expenses in connection with the registration, but excluding
discounts, commissions, fees of underwriters, selling brokers, dealer managers
or similar securities industry professionals with respect to the Registrable
Securities being sold.
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(c) EFFECTIVENESS.
(i) The Company shall use commercially reasonable efforts to
have the Registration Statement declared effective as soon as practicable. The
Company shall notify the Investors by facsimile or e-mail as promptly as
practicable, and in any event, within one business day, after any Registration
Statement is declared effective and shall at such time provide the Investors
with copies of any related Prospectus to be used in connection with the sale or
other disposition of the securities covered thereby. If (x) a Registration
Statement covering the Registrable Securities is not declared effective by the
SEC within ninety (90) days after the Closing Date (120 days if the SEC reviews
the Registration Statement), or (y) a Registration Statement covering Additional
Shares is not declared effective by the SEC within ninety (90) days following
the time such Registration Statement was required to be filed pursuant to
Section 2(a)(ii) (a "Blackout Period"), then the Company will make pro rata
payments to each Investor, as liquidated damages and not as a penalty, in an
amount equal to 1.25% of the aggregate amount invested by such Investor for each
30-day period or pro rata for any portion thereof following the date by which
such Registration Statement should have been effective. If after a Registration
Statement has been declared effective by the SEC, sales cannot be made pursuant
to such Registration Statement for any reason (including without limitation by
reason of a stop order, or the Company's failure to update the Registration
Statement), but excluding the inability of any Investor to sell the Registrable
Securities covered thereby due to market conditions and except as excused
pursuant to subparagraph (ii) below, then the Company will make pro rata
payments to each Investor, as liquidated damages and not as a penalty, in an
amount equal to the greater of (i) 1.25% of 50% of the Investor's Subscription
Amount or (ii) 1.25% of the product of (x) the Investor's Per Share Subscription
Price multiplied by (y) the sum of (i) the Shares and (ii) the Warrant Shares
then held by the Investor, for such Blackout Period. Such payments pursuant to
this paragraph 2(c) shall be in partial compensation to the Investors, and shall
not constitute the Investors' exclusive remedy for such events. The amounts
payable as liquidated damages pursuant to this paragraph shall be paid monthly
within three (3) Business Days of the last day of each month following the
commencement of a Blackout Period until the termination of such Blackout Period.
Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a
total of not more than forty-five (45) days in any twelve (12) month period, the
Company may delay the disclosure of material non-public information concerning
the Company, by suspending the use of any Prospectus included in any
registration contemplated by this Section containing such information, the
disclosure of which at the time is not, in the good faith opinion of the
Company, in the best interests of the Company (an "Allowed Delay"); provided,
that the Company shall promptly (a) notify the Investors in writing of the
existence of (but in no event, without the prior written consent of an Investor,
shall the Company disclose to such Investor any of the facts or circumstances
regarding) material non-public information giving rise to an Allowed Delay, (b)
advise the Investors in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay and (c) use commercially reasonable
efforts to terminate an Allowed Delay as promptly as practicable.
(d) UNDERWRITTEN OFFERING. If any offering pursuant to a
Registration Statement pursuant to Section 2(a) hereof involves an underwritten
offering, the Company shall
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have the right to select an investment banker and manager to administer the
offering, which investment banker or manager shall be reasonably satisfactory to
the Required Investors.
3. COMPANY OBLIGATIONS. The Company will use commercially reasonable
efforts to effect the registration of the Registrable Securities in accordance
with the terms hereof, and pursuant thereto the Company will, as expeditiously
as possible:
(a) use commercially reasonable efforts to cause such
Registration Statement to become effective and to remain continuously effective
for a period that will terminate upon the earlier of (i) the date on which all
Registrable Securities covered by such Registration Statement as amended from
time to time, have been sold, and (ii) the date on which all Registrable
Securities covered by such Registration Statement may be sold pursuant to Rule
144(k) (the "Effectiveness Period") and advise the Investors in writing when the
Effectiveness Period has expired;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement and the Prospectus as
may be necessary to keep the Registration Statement effective for the period
specified in Section 3(a) and to comply with the provisions of the 1933 Act and
the 1934 Act with respect to the distribution of all of the Registrable
Securities covered thereby;
(c) provide copies to and permit counsel designated by the
Investors to review each Registration Statement and all amendments and
supplements thereto no fewer than three (3) business days prior to their filing
with the SEC and not file any document to which such counsel reasonably objects;
(d) furnish to the Investors and their legal counsel (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company (but not later than two (2) Business Days after
the filing date, receipt date or sending date, as the case may be) one (1) copy
of any Registration Statement and any amendment thereto, each preliminary
prospectus and Prospectus and each amendment or supplement thereto, and each
letter written by or on behalf of the Company to the SEC or the staff of the
SEC, and each item of correspondence from the SEC or the staff of the SEC, in
each case relating to such Registration Statement (other than any portion of any
thereof which contains information for which the Company has sought confidential
treatment), and (ii) such number of copies of a Prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents as each Investor may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Investor that are
covered by the related Registration Statement;
(e) use commercially reasonable efforts to (i) prevent the
issuance of any stop order or other suspension of effectiveness and, (ii) if
such order is issued, obtain the withdrawal of any such order at the earliest
possible moment;
(f) prior to any public offering of Registrable Securities,
use commercially reasonable efforts to register or qualify or cooperate with the
Investors and their counsel in connection with the registration or qualification
of such Registrable Securities for offer and sale under the securities or blue
sky laws of such jurisdictions requested by the
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Investors and do any and all other commercially reasonable acts or things
necessary or advisable to enable the distribution in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided, however,
that the Company shall not be required in connection therewith or as a condition
thereto to (i) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(f), (ii) subject itself
to general taxation in any jurisdiction where it would not otherwise be so
subject but for this Section 3(f), or (iii) file a general consent to service of
process in any such jurisdiction;
(g) use commercially reasonable efforts to cause all
Registrable Securities covered by a Registration Statement to be listed on each
securities exchange, interdealer quotation system or other market on which
similar securities issued by the Company are then listed;
(h) immediately notify the Investors, at any time when a
Prospectus relating to Registrable Securities is required to be delivered under
the 1933 Act, upon discovery that, or upon the happening of any event as a
result of which, the Prospectus included in a Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and at the
request of any such holder, promptly prepare and furnish to such holder a
reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and
(i) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the SEC under the 1933 Act and the
1934 Act, take such other actions as may be reasonably necessary to facilitate
the registration of the Registrable Securities hereunder; and make available to
its security holders, as soon as reasonably practicable, but not later than the
Availability Date (as defined below), an earnings statement covering a period of
at least twelve (12) months, beginning after the effective date of each
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder (for
the purpose of this subsection 3(i), "Availability Date" means the 45th day
following the end of the fourth fiscal quarter that includes the effective date
of such Registration Statement, except that, if such fourth fiscal quarter is
the last quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter).
(j) With a view to making available to the Investors the
benefits of Rule 144 (or its successor rule) and any other rule or regulation of
the SEC that may at any time permit the Investors to sell shares of Common Stock
to the public without registration, the Company covenants and agrees to: (i)
make and keep public information available, as those terms are understood and
defined in Rule 144, until the earlier of (A) six months after such date as all
of the Registrable Securities may be resold pursuant to Rule 144(k) or any other
rule of similar effect or (B) such date as all of the Registrable Securities
shall have been resold; (ii) file with the SEC in a timely manner all reports
and other documents required of the Company under the 1934 Act; and (iii)
furnish to each Investor upon request, as long as such Investor owns any
Registrable Securities, (A) a written statement by the Company that it has
complied with the
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reporting requirements of the 1934 Act, (B) a copy of the Company's most recent
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other
information as may be reasonably requested in order to avail such Investor of
any rule or regulation of the SEC that permits the selling of any such
Registrable Securities without registration.
4. DUE DILIGENCE REVIEW; INFORMATION. The Company shall make
available, during normal business hours, for inspection and review by the
Investors, advisors to and representatives of the Investors (who may or may not
be affiliated with the Investors and who are reasonably acceptable to the
Company), any underwriter participating in any disposition of shares of Common
Stock on behalf of the Investors pursuant to a Registration Statement or
amendments or supplements thereto or any blue sky, NASD or other filing, all
financial and other records, all SEC Filings (as defined in the Purchase
Agreement) and other filings with the SEC, and all other corporate documents and
properties of the Company as may be reasonably necessary for the purpose of such
review, and cause the Company's officers, directors and employees, within a
reasonable time period, to supply all such information reasonably requested by
the Investors or any such representative, advisor or underwriter in connection
with such Registration Statement (including, without limitation, in response to
all questions and other inquiries reasonably made or submitted by any of them),
prior to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling the Investors and such
representatives, advisors and underwriters and their respective accountants and
attorneys to conduct initial and ongoing due diligence with respect to the
Company and the accuracy of such Registration Statement.
The Company shall not disclose material nonpublic information
to the Investors, or to advisors to or representatives of the Investors, unless
prior to disclosure of such information the Company identifies such information
as being material nonpublic information and provides the Investors, such
advisors and representatives with the opportunity to accept or refuse to accept
such material nonpublic information for review and any Investor wishing to
obtain such information enters into an appropriate confidentiality agreement
with the Company with respect thereto.
5. OBLIGATIONS OF THE INVESTORS.
(a) Each Investor shall furnish in writing to the Company
such information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it, as
shall be reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request. Such documents shall include the
questionnaire attached hereto as EXHIBIT B. At least five (5) Business Days
prior to the first anticipated filing date of any Registration Statement, the
Company shall notify each Investor of the information the Company requires from
such Investor if such Investor elects to have any of the Registrable Securities
included in the Registration Statement. An Investor shall provide such
information to the Company at least two (2) Business Days prior to the first
anticipated filing date of such Registration Statement if such Investor elects
to have any of the Registrable Securities included in the Registration
Statement.
(b) Each Investor, by its acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested by the
Company in connection
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with the preparation and filing of a Registration Statement hereunder, unless
such Investor has notified the Company in writing of its election to exclude all
of its Registrable Securities from such Registration Statement.
(c) Each Investor agrees that, upon receipt of any notice
from the Company of either (i) the commencement of an Allowed Delay pursuant to
Section 2(c)(ii) or (ii) the happening of an event pursuant to Section 3(h)
hereof (each, a "Suspension Event"), such Investor will immediately discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities, until the Investor's receipt of the copies
of the supplemented or amended prospectus filed with the SEC and until any
related post-effective amendment is declared effective and, if so directed by
the Company, the Investor shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in the Investor's possession of the Prospectus covering the
Registrable Securities current at the time of receipt of such notice. The
Suspension Event and notice thereof described in this Section 5(c) shall be
deemed to be confidential information and shall be held by each Investor in
strictest confidence.
(d) Each Investor agrees that they will not offer to sell or
make any sale, assignment, pledge, hypothecation or other transfer with respect
to the Registrable Shares that would constitute a sale within the meaning of the
1933 Act except pursuant to either (1) the Registration Statement, (2) Rule 144
of the 1933 Act or (3) any other exemption from registration under the
Securities Act, and that they will promptly notify the Company of any material
changes in the information set forth in the Registration Statement regarding
such Investor.
Provided that a Suspension Event is not then in effect, the
Investors may sell Registrable Securities under the Registration Statement in
accordance with the Plan of Distribution included in the Prospectus. The selling
Investors shall comply with any prospectus delivery requirement applicable to
such sales.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company will
indemnify and hold harmless, to the fullest extent permitted by law, each
Investor and its officers, directors, members, employees and agents, successors
and assigns, and each other person, if any, who controls such Investor within
the meaning of the 1933 Act, against any losses, claims, damages or liabilities,
joint or several, to which they may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereof; (ii) any blue sky application or other
document executed by the Company specifically for that purpose or based upon
written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Registrable Securities under
the securities laws thereof (any such application, document or information
herein called a "Blue Sky Application"); (iii) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; (iv) any violation by the Company or
its agents of any rule or regulation promulgated under the 1933 Act applicable
to the Company
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or its agents and relating to action or inaction required of the Company in
connection with such registration; or (v) any failure to register or qualify the
Registrable Securities included in any such Registration in any state where the
Company or its agents has affirmatively undertaken or agreed in writing that the
Company will undertake such registration or qualification on an Investor's
behalf (the undertaking of any underwriter chosen by the Company being
attributed to the Company) and will reimburse such Investor, and each such
officer, director or member and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon (1) an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by such Investor or any such
controlling person in writing specifically for use in such Registration
Statement or Prospectus, (2) the failure of such Investor to comply with the
covenants and agreements contained in this Agreement respecting resale of the
Registrable Securities, or (3) any untrue statement or omission of a material
fact required to make such statement not misleading in any Prospectus that is
corrected in any subsequent Prospectus that was delivered to such Investor a
reasonable period of time before the pertinent sale or sales by such Investor.
(b) INDEMNIFICATION BY THE INVESTORS. Each Investor agrees,
severally but not jointly, to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, its directors, officers, employees, stockholders
and each person who controls the Company (within the meaning of the 0000 Xxx)
against any losses, claims, damages, liabilities and expense (including
reasonable attorney fees) resulting from (i) any untrue statement of a material
fact or any omission of a material fact required to be stated in the
Registration Statement or Prospectus or preliminary prospectus or amendment or
supplement thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent that such untrue statement or omission is
contained in any information furnished in writing by such Investor to the
Company specifically for inclusion in such Registration Statement or Prospectus
or amendment or supplement thereto or (ii) any failure of such Investor to
comply with the covenants and agreements contained in this Agreement respecting
resale of the Registrable Securities and such Investor will reimburse the
Company, each of its directors, officers, agents and employees, and any
controlling persons for any reasonable legal and other expense incurred by the
Company, its directors, officers, agents and employees, and any controlling
persons, in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. In no event
shall the liability of an Investor be greater in amount than the dollar amount
of the proceeds (net of all expense paid by such Investor in connection with any
claim relating to this Section 6 and the amount of any damages such Investor has
otherwise been required to pay by reason of such untrue statement or omission)
received by such Investor upon the sale of the Registrable Securities included
in the Registration Statement giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person
entitled to indemnification hereunder shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; PROVIDED that any
person entitled to indemnification hereunder shall have the right to employ
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separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless (a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
PROVIDED, FURTHER, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such
claim or litigation. It is understood that the indemnifying party shall not, in
connection with any proceeding in the same jurisdiction, be liable for fees or
expenses of more than one separate firm of attorneys at any time for all such
indemnified parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation.
(d) CONTRIBUTION. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) is unavailable to an
indemnified party or insufficient to hold it harmless, other than as expressly
specified therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim, damage
or liability in such proportion as is appropriate to reflect the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations. No person guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the 1933 Act shall be
entitled to contribution from any person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of a holder of
Registrable Securities be greater in amount than the dollar amount of the
proceeds (net of all expenses paid by such holder in connection with any claim
relating to this Section 6 and the amount of any damages such holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission) received by it upon the sale of the
Registrable Securities giving rise to such contribution obligation.
7. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. This Agreement may be amended
only by a writing signed by the Company and the Required Investors. The Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Required
Investors.
(b) NOTICES. All notices and other communications provided
for or permitted hereunder shall be made as set forth in Section 9.4 of the
Purchase Agreement.
(c) ASSIGNMENTS AND TRANSFERS BY INVESTORS. The provisions
of this Agreement shall be binding upon and inure to the benefit of the
Investors and their respective
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successors and assigns. An Investor may transfer or assign, in whole or from
time to time in part, to one or more persons its rights hereunder in connection
with the transfer of Registrable Securities by such Investor to such person,
provided that such Investor complies with all laws applicable thereto and
provides written notice of assignment to the Company promptly after such
assignment is effected.
(d) ASSIGNMENTS AND TRANSFERS BY THE COMPANY. This Agreement
may not be assigned by the Company (whether by operation of law or otherwise)
without the prior written consent of the Required Investors, provided, however,
that the Company may assign its rights and delegate its duties hereunder to any
surviving or successor corporation in connection with a merger or consolidation
of the Company with another corporation, or a sale, transfer or other
disposition of all or substantially all of the Company's assets to another
corporation, without the prior written consent of the Required Investors, after
notice duly given by the Company to each Investor.
(e) BENEFITS OF THE AGREEMENT. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
(f) COUNTERPARTS; FAXES. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
also be executed via facsimile, which shall be deemed an original.
(g) TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(h) SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provisions hereof prohibited or
unenforceable in any respect.
(i) FURTHER ASSURANCES. The parties shall execute and
deliver all such further instruments and documents and take all such other
actions as may reasonably be required to carry out the transactions contemplated
hereby and to evidence the fulfillment of the agreements herein contained.
(j) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained
-11-
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(k) GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of New York without regard to the choice of law
principles thereof. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York located in New
York County and the United States District Court for the Southern District of
New York for the purpose of any suit, action, proceeding or judgment relating to
or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
-12-
IN WITNESS WHEREOF, the parties have executed this Agreement
or caused their duly authorized officers to execute this Agreement as of the
date first above written.
The Company: FIND/SVP, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
-13-
The Investors: SPECIAL SITUATIONS FUND III, L.P.
By: /s/ Xxxxx X. Greenhouse
--------------------------------------------
Name: Xxxxx X. Greenhouse
Title: General Partner
SPECIAL SITUATIONS CAYMAN FUND, L.P.
By: /s/ Xxxxx X. Greenhouse
--------------------------------------------
Name: Xxxxx X. Greenhouse
Title: General Partner
SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.
By: /s/ Xxxxx X. Greenhouse
--------------------------------------------
Name: Xxxxx X. Greenhouse
Title: General Partner
-14-
City of Milford Pension & Retirement Fund
City of Stamford Firemen's Pension Fund
National Federation of Independent Business Employee
Pension Trust
National Federation of Independent Business
Norwalk Employees' Pension Plan
Public Employee Retirement System of Idaho
Asphalt Green, Inc.
Xxxxx Foundation
Xxxx X. & Xxxxxx X. Xxxxxxxx 1993 Trust
Xxxxx Xxxx
Xxxxxxxx xxXxxxx
HBL Charitable Unitrust
Xxxxxx X. Xxxxxxx
Psychology Associates
Xxxxx Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx Trust Co. of the Bahamas Ltd. as Trustee
U/A/D 11/30/93
Xxxx Xxxxx
Xxxxx Xxxx Xxxxxxx
Theeuwes Family Trust, Xxxxx Xxxxxxxx Trustee
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
By: Xxxxxxx Capital Group LLC, as Attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
-15-
[LEVITICUS PARTNERS, L.P.]
By: /s/ Xxxx X. Xxxx
-------------------------
Name: Xxxx X. Xxxx
Title: President AMN Equity Ltd.
(G.P.-Leviticus Partners, L.P.)
-00-
Xxxxxx Xxxxx Technology Partners LLC
By: /s/ Xxxxxx X. Xxxx
-------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director of the
Investment Manager
-17-
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
-18-
Crown Investment Partners, LP
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Member of the
General Partner
-19-
Pequot Scout Fund, L.P.
By Pequot Capital Management, Inc.
Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: General Counsel
Pequot Navigator Onshore Fund, L.P.
By Pequot Capital Management, Inc.
Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: General Counsel
-20-
[Corsair Capital Partners LP]
By: /s/ Xxx Xxxxxxxx
-------------------------
Name: Xxx Xxxxxxxx
Title: Managing Member of the G.P.
Corsair Capital Partners LP
-21-
[Corsair Capital Partners 100, LP]
By: /s/ Xxx Xxxxxxxx
-------------------------
Name: Xxx Xxxxxxxx
Title: Managing Member of the G.P.
Corsair Capital Partners 000, XX
-00-
[Xxxxxxx Xxxxxxx Xxxxxxxxx, Ltd.]
By: /s/ Xxx Xxxxxxxx
-------------------------
Name: Xxx Xxxxxxxx
Title: Managing Member of the I.M.
Corsair Capital Investors, Ltd
-23-
XXXXXXXXXXXX QUALIFIED ASSOCIATES, LP
By: /s/ Xxxxxxx Xxxxxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Managing Member of the
General Partner
-24-
DKR SOUNDSHORE OASIS HOLDING FUND LTD.
By: /s/ Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
Title: Xxxxxxxxx Xxxxxxxx
-00-
Xxxxx Xxxxx-Xxxxxxxx Holding Fund Ltd.
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
-26-
Basso Equity Opportunity Holding Fund Ltd.
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
-27-
Iroquois Capital LP
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Partner
-28-
[Xxxxxx Xxxxxxxx Money Purchase Plan]
By: /s/ Xxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
-29-
XXXXXXX RIVER PARTNERS, LP
By: /s/ Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Partner
-30-
XXXXXXX RIVER PARTNERS II
By: /s/ Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Partner
-31-
[Kensington Partners, LP]
By: /s/ Xxxxxxx Xxxx
-------------------------
Name: Xxxxxxx Xxxx
Title: Managing Member
-32-
[Bald Eagle Fund, Ltd.]
By: /s/ Xxxxxxx Xxxx
-------------------------
Name: Xxxxxxx Xxxx
Title: Managing Member
-33-
SF CAPITAL PARTNERS LTD.
By: /s/ Xxxxxxx X. Xxxx
-------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
-34-
