November 5, 2001
Find/SVP, Inc.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
SVP S.A.
00 xxx xxx Xxxxxxx
Xxxxx-Xxxx, Xxxxx
Xxxxxx F-93585
SVP International
00 xxx xxx Xxxxxxx
Xxxxx-Xxxx, Xxxxx
Xxxxxx F-93585
Gentlemen:
When agreed to and accepted by you in the space provided below, the
following shall constitute our agreement, pursuant to which, among other things,
(1) the undersigned, Xxxxxx Xxxxxxxx ("Xxxxxxxx"), Xxx Xxxxxx ("Ashken"), or an
entity controlled by Franklin and Ashken (the "Controlled Entity"), and Xxxxx
Xxxxx ("Xxxxx"), or an entity controlled by Xxxxx ("the "Xxxxx Controlled
Entity") (Xxxxxxxx, Xxxxxx or the Controlled Entity, and Xxxxx or the Xxxxx
Controlled Entity being hereinafter sometimes referred to as the "Purchasers"),
shall (a) purchase from SVP, S.A. (i) 2,198,600 shares (or such lessor number of
shares as may be owned by SVP, S.A., but in no event less than 2,038,100 shares)
(the "SVP, S.A. Shares") of Find/SVP, Inc. (the "Company") common stock, par
value $.0001 per share ("Common Stock"), and (ii) warrants to purchase 422,222
shares of the Company Common Stock at an exercise price of $2.25 per share (the
"Warrants"), (b) purchase from SVP International 614,163 shares (or such greater
number of shares as may be owned by SVP International, but in no event more than
614,763 shares) (the "SVPI Shares") of Company Common Stock, and (c) purchase,
or arrange for accredited investors ("Investors") to purchase, from the Company
1,875,000 shares (the "Company Shares") of Company Common Stock, and (2) in
consideration of the transaction set forth in (1)(c) above, the Company shall
(a) reprice the Warrants to reflect an exercise price of $.80 per share, and (b)
enter into (i) a three-year employment agreement with Xxxxx as CEO of the
Company, pursuant to which Xxxxx will receive a salary and stock options to
purchase Company Common Stock, (ii) a three-year agreement with Franklin to
serve as Chairman of the Board of Directors of the Company, pursuant to which
Franklin will receive, as compensation for his services, stock options to
purchase Company Common Stock, and (iii) a three-year financial consulting
agreement with Ashken, pursuant to which Ashken will receive, as full
compensation for his services, stock options to purchase Company Common Stock.
SVP, S.A. and SVP International represent and warrant that the SVP, S.A. Shares,
the Warrants and the SVPI Shares constitute all of the shares of Common Stock
and securities convertible into Common Stock that are owned by them or their
affiliates (other than approximately 10,000 shares of Common Stock owned by
Brigitte de Gastines).
1. Purchase of the SVP, S.A. Shares and the Warrants.
At the Closing (as defined in Section 4 hereof), the Purchasers agree
to purchase from SVP, S.A., and SVP, S.A. agrees to sell to the Purchasers, (a)
the SVP, S.A. Shares, at a purchase price of $.70 per share, and (b) the
Warrants, at a price of $.62763 per Warrant. The SVP, S.A. Shares and the
Warrants shall be allocated to the Purchasers as set forth in a definitive Stock
and Warrant Purchase Agreement to be negotiated in good faith and entered into
by the parties. The representations and warranties of SVP, S.A. in the Stock and
Warrant Purchase Agreement shall be limited to the valid organization of SVP,
S.A., the authorization and enforceability of the agreement, the absence of
conflict with or violation of laws, regulations, etc., the absence of any
requirement of consents of governmental authorities or others (other than Chase
Bank, which consent shall have been obtained at or prior to Closing), the
absence of litigation or claims with respect to the SVP, S.A. Shares or
Warrants, and free and clear title to the SVP, S.A. Shares and Warrants. The
representations, warranties and covenants of the Purchasers shall include those
necessary to establish an exemption for the purchase of the SVP, S.A. Shares and
the Warrants under applicable Securities and Exchange Commission ("SEC") rules
and regulations and to assure compliance with such rules and regulations. To the
extent there are registration rights with respect to the Warrants, the Stock and
Warrant Purchase Agreement shall assign such rights to the Purchasers, and the
Company shall consent to such assignment. In connection with the execution and
delivery of the Stock and Warrant Purchase Agreement, SVP, S.A. shall deliver a
general release to the Company of all claims it may have against the Company,
except for outstanding indebtedness of the Company to SVP, S.A. reflected on the
financial statements of the Company.
2. Purchase of the SVPI Shares.
At the Closing, the Purchasers agree to purchase from SVP
International, and SVP International agrees to sell to the Purchasers, the SVPI
Shares at a purchase price of $.70 per share. The SVPI Shares shall be allocated
to the Purchasers as set forth in a definitive stock purchase agreement (the
"SVPI Stock Purchase Agreement") to be negotiated in good faith and entered into
by the parties. The representations and warranties of SVP International in the
SVPI Stock Purchase Agreement shall be limited to the valid organization of SVP
International, the authorization and enforceability of the agreement, the
absence of conflict with or violation of laws, regulations, etc., the absence of
any requirement of consents of governmental authorities or others (other than
Chase Bank, which consent shall have been obtained at or prior to Closing), the
absence of litigation or claims with respect to the SVPI Shares, and title to
the SVPI Shares. The representations, warranties and covenants of the Purchasers
shall include those necessary to establish an exemption for the purchase of the
SVPI Shares under applicable SEC rules and regulations and to assume compliance
with such rules and regulations. In connection with the execution and delivery
of the SVPI Stock Purchase Agreement, SVPI shall deliver a general release to
the Company of all claims it may have against the Company.
3. Purchase of Company Shares.
At the Closing, the Purchasers agree to purchase, or arrange for
Investors to purchase, from the Company, the Company Shares at a purchase price
of $.80 per share. The Company Shares shall be allocated to the Purchasers
and/or the Investors as set forth in a
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definitive Stock Purchase Agreement to be negotiated in good faith by the
undersigned and entered into by the parties. The representations and warranties
of the Company in the Stock Purchase Agreement shall be made solely by the
Company and shall be limited to the valid organization of the Company and its
qualifications and good standing as a foreign corporation in jurisdictions other
than the state of incorporation, the absence or presence of subsidiaries and
investments, the authorization and enforceability of the agreement, the absence
of conflict with or violation of laws, regulations, etc., the absence of any
requirement of consents of governmental authorities or others (other than Chase
Bank, which consent shall have been obtained at or prior to Closing), the
Company's capitalization, the truthfulness of statements contained in the
Company's SEC filings and the inclusion therein of all material facts required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (except to the
extent corrected by a subsequently filed document), the proper form of financial
statements included in the Company's SEC filings, their compliance with GAAP
(except as may be indicated in notes thereto), and their fair presentation of
the financial results of the Company, the absence of certain changes in the
condition, etc. of the Company, the lack of litigation or claims against the
Company, the Company's intellectual property, the payment of taxes, the absence
of defaults under Company contracts and commitments, and absence of material
misstatements or omissions in the Company's representations and warranties. The
representations, warranties and covenants of the Purchasers and/or the Investors
shall include those necessary to establish an exemption for the purchase of the
Company Shares under the applicable SEC rules and regulations and to assure
compliance with such rules and regulations.
4. Closing.
The closing ("Closing") with respect to the transactions set forth in
this Agreement (the "Transactions") shall take place at the offices of Xxxxxxx &
Xxxxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 on or before November 14,
2001, but in no event later than November 30, 2001.
At the Closing:
(a) (i) SVP, S.A. and the Purchasers shall execute and deliver the
Stock and Warrant Purchase Agreement.
(ii) SVP, S.A. shall deliver to the Purchasers the SVP, S.A.
Shares, together with stock powers duly executed in blank, and the Warrants,
with proper forms of assignment.
(iii) SVP, S.A. shall deliver a general release to the Company of
all claims it may have against the Company, except for outstanding indebtedness
of the Company to SVP, S.A. reflected in the financial statements of the
Company.
(iv) The Purchasers shall deliver to SVP, S.A. payment for the
SVP, S.A. Shares and the Warrants by certified or bank check or wire transfer of
immediately available funds.
(b) (i) SVP International and the Purchasers shall execute and
deliver the SVPI Stock Purchase Agreement.
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(ii) SVP International shall deliver to the Purchasers the SVPI
Shares, together with stock powers duly executed in blank.
(iii) SVP International shall deliver a general release to the
Company of all claims it may have against the Company.
(iv) The Purchasers shall deliver to SVP International payment
for the SVPI Shares by certified or bank check or wire transfer of immediately
available funds.
(c) (i) The Company and the Purchasers and/or the Investors shall
execute and deliver the Stock Purchase Agreement.
(ii) The Company shall deliver to the Purchasers and/or the
Investors the Company Shares.
(iii) The Purchasers and/or the Investors shall deliver to the
Company payment for the Company Shares.
(d) Each of the transactions described in Sections 4(a), 4(b), 4(c), 0,
0, 0 xxx 0 xxxxx xx deemed to have occurred simultaneously, and none shall be
deemed to have occurred unless all such transactions shall have occurred.
5. Repricing of Warrants.
Upon the Closing of the Transactions, in consideration of the purchase
of the Company Shares, the Company shall reprice the exercise price of the
Warrants at $.80 per share.
6. Employment/Consulting Agreements.
Upon the Closing of the Transactions, in consideration of the purchase
of the Company Shares, the Company shall:
(a) Enter into a three-year employment agreement with Xxxxx as CEO of
the Company, pursuant to which Xxxxx will receive a salary of $100,000 per annum
(as the same may be adjusted upward by the Board of Directors) and the Company
will grant to Xxxxx ten year non-incentive stock options to purchase 700,000
shares of Company Common Stock (as the same may be reduced by 50% of any options
allocated to Xxxxxxx Xxxxx in the event he participates in any of the
Transactions and is employed by the Company as an employee or consultant) at a
price of $.41 per share (the average trading price of the Common Stock for the
10-day period prior to the date hereof), which options shall vest ratably at the
end of each of the first three years of their term and the vesting of which
shall accelerate in the event of a "change in control" of the Company.
(b) Enter into a three-year agreement with Franklin as Chairman of the
Board of Directors of the Company, pursuant to which the Company will (i) grant
to Franklin, as compensation for his services, ten-year non-incentive stock
options to purchase 700,000 shares of Company Common Stock (as the same may be
reduced by 50% of any options allocated to Xxxxxxx Xxxxx in the event he
participates in any of the Transactions and is employed by the
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Company as an employee or consultant), at a price of $.41 per share (the average
trading price of the Common Stock for the 10-day period prior to the date
hereof), which options shall vest ratably at the end of each of the first three
years of their term and the vesting of which shall accelerate in the event of a
"change in control" of the Company, and (ii) pay to Franklin a non-accountable
expense allowance of $20,000 per year.
(c) Enter into a three-year financial consulting agreement with Ashken,
pursuant to which the Company will grant to Ashken, as full compensation for his
services (except as may otherwise be decided by the Board of Directors of the
Company), ten-year non-incentive stock options to purchase 100,000 shares of the
Company's Common Stock at a price of $.41 per share (the average trading price
of the Common Stock for the 10-day period prior to the date hereof), which
options shall vest ratably at the end of each of the first three years of their
term and the vesting of which shall accelerate in the event of a "change in
control" of the Company.
(d) The Company covenants and agrees that it will take such steps as
may be necessary to amend the Company's 1996 Stock Option Plan or adopt a new
stock option plan so as to enable the Company to grant the aforesaid stock
options.
7. Change in Composition of the Board of Directors.
Upon the Closing of the Transactions, the Company shall (a) obtain the
resignation of Brigitte de Gastines, Xxxx-Xxxxx Xxxxxx, Xxxx Cachert and
Xxxxxxxxx X. Xxxxxxxx as directors of the Company, (b) satisfy, if applicable,
the requirements of Section 14(f) of the Securities Exchange Act of 1934 and
Rule 14(f)-1 promulgated thereunder (collectively "Rule 14(f)-1"), and (c)
immediately after satisfying the requirements of Rule 14(f)-1, if applicable,
or, if not applicable, upon the Closing cause the appointment of Franklin and
Xxxxx as directors of the Company. It is the stated desire of Franklin and Xxxxx
that, together with the remaining directors of the Company - to wit: Xxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxxx, they jointly identify and bring on to the Board,
immediately after the Company satisfies the requirements of Rule 14(f)-1, if
applicable, or, if not applicable, on the date of Closing, a minimum of two
additional independent directors acceptable to all of the Board members.
8. Amendment of License Agreement with SVP International.
Upon the Closing of the Transactions, the license agreement, dated as
of October 11, 1971, as amended on March 23, 1981, by and between SVP
International (formerly known as SVP Conseil Compagnie International de
Documentation, Information at Service) a Swiss company, and the Company
(formerly known as Information Clearing House, Inc.) shall be amended, as set
forth in Exhibit A attached hereto and made a part hereof.
9. Exclusivity
Commencing with the date hereof until the earlier of the Closing or
termination of this Agreement pursuant to Section 10 hereof (the "Exclusivity
Period"), the Company, SVP, S.A., SVP International and their affiliates shall
not discuss or consummate with any party other than Purchasers (collectively,
"Other Parties") any proposal for the sale of capital stock of the Company or
any material assets of the Company or the merger or consolidation with or into
another entity or any similar type of transaction, including any debt, equity or
equity related
5
financing or any transaction outside the ordinary course of business of the
Company or agree to do any of the foregoing, (any of the foregoing being
hereinafter referred to as an "Alternative Transaction"), and shall not provide
or make information about the Company available to any Other Party other than in
the ordinary course of business or pursuant to the requirements of applicable
law. If any unsolicited inquiry, contact or proposal for an Alternative
Transaction is received during such period, the Company shall immediately inform
Purchasers of the nature of the inquiry, contact or proposal for an Alternative
Transaction, the identity of the Other Party making such proposal and shall
promptly provide to Purchasers, upon their request or upon any significant
development with respect to the inquiry, contact or proposal for an Alternative
Transaction, such information as Purchasers shall reasonably request or a
description of such development. During the exclusivity period the Company shall
not declare any dividend or other distribution on its Common Stock, shall not
increase the salaries of its employees or pay bonuses (other than in the normal
course consistent with past practices), shall not pay any amounts or issue any
stock or option to its management or directors (other than pursuant to existing
agreements) or agree to do any of the foregoing.
10. Termination of Agreement.
(a) This Agreement may be terminated by written notice promptly given
to the other parties hereto, at any time prior to the Closing:
(i) by mutual written consent of the parties hereto;
(ii) by any of the parties if any permanent injunction or other
order of a court of competent authority or governmental body which prevents the
consummation of the Transactions shall have become final and not appealable;
(iii) by the Purchasers in the event (i) the Company sustains a
material loss, whether or not insured, by reason of fire, earthquake, flood,
accident or other calamity, or from any labor dispute or court of government
action, order or decree, (ii) trading in securities on the New York Stock
Exchange or the American Stock Exchange is suspended or limited, (iii) material
governmental restrictions are imposed on trading in securities generally (not in
force and effect on the date hereof), (iv) a banking moratorium is declared by
federal or New York state authorities, (v) an outbreak of major international
hostilities or other national or international calamity occurs which has a
adverse effect on the United States, (vi) a pending or threatened legal or
governmental proceeding or action relating generally to the Company's business,
or a notification is received by the Company of the threat of any such
proceeding or action, which could materially adversely affect the Company; (vii)
of the passage by the Congress of the United States or by any state legislative
body of similar impact, of any act or measure, or the adoption of any orders,
rules or regulations by any governmental body or any authoritative accounting
institute or board, or any governmental executive, which is reasonably likely to
have a material impact on the business, financial condition or financial
statements of the Company, or (viii) any material adverse change in the
financial or securities markets beyond normal market fluctuations occurs after
the date of this Agreement; or
(iv) by the Company or the Purchasers if the Transactions have not
closed by November 30, 2001.
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(b) Upon any termination of this Agreement pursuant to Section 10(a),
this Agreement shall be void and have no effect, without any liability on the
part of any party hereto or any shareholders, directors or officers thereof;
provided, however, that such termination shall not relieve any party from
liability to the other party for damage sustained by the other party for a
breach of any of the first party's representations, warranties, covenants or
agreements set forth in this Agreement prior to the date of termination.
11. Expenses.
Each party shall bear its own expenses in connection with the
Transactions and the ancillary matters set forth herein.
12. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in
writing and shall be sent by certified mail, postage prepaid, return receipt
requested; by an overnight express courier service that provides written
confirmation of delivery, or by facsimile with confirmation, address as follows:
(i) If to Purchasers:
Xxxxxx X. Xxxxxxxx
c/o Xxxxxx Holdings Inc.
000 Xxxxxxxx Xxxxx Xxx., Xxxxx X-000
Xxx, XX 00000
Xxxxx Xxxxx
c/o Xxxxxx Holdings Inc.
000 Xxxxxxxx Xxxxx Xxx., Xxxxx X-000
Xxx, XX 00000
With a copy given to:
Xxxxx Xxxxxxxxx
c/o Kane Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
(ii) If to the Company:
Find/SVP, Inc.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
With a copy given to:
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Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
and
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
(iii) If to SVP, S.A. or SVP International:
00 xxx xxx Xxxxxxx
Xxxxx-Xxxx, Xxxxx
Xxxxxx F-93585
With a copy given to:
Xxxxxx-Xxxxx Fontaneau
00 Xxx xx Xxxxxxxxxxxx
00000 Xxxxx, XXXXXX
Any party may change its address for receiving notice by giving notice
of a new address in the manner provided herein. Any notice so given, shall be
deemed to be delivered on the second business day after the same is deposited in
the United States Mail, on the next business day if sent by overnight courier,
or on the same business day if sent by facsimile before the close of business,
or the next business day, if sent by facsimile after the close of business.
(b) Headings. The descriptive section headings set forth herein are
inserted for convenience of reference only, do not constitute a part of this
Agreement and shall not control or affect the meaning or construction of any
provision of this Agreement.
(c) Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties pertaining to this subject matter and supersedes
all prior agreements and understandings, whether oral or written, of the parties
relating to the same. This Agreement may be amended only in writing signed by
all of the parties.
(d) Severability. If any term or provision of this Agreement or any
application thereof shall be invalid or unenforceable, the remainder of this
Agreement and any other application of such term or provision shall not be
affected thereby.
(e) Counterpart Execution. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any counterpart signature
page delivered by facsimile transmission shall be deemed to be and have the same
force and effect as an originally executed signature page. This Agreement shall
become binding when one or more counterparts hereof,
8
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without reference to
choice of law principles thereof.
(g) Arbitration. The sole and exclusive remedy for any controversy or
claim between Purchasers and the Company, SVP, S.A. and/or SVP International
arising out of or relating to this Agreement shall be submitted to binding
arbitration conducted before and in accordance with the Commercial Arbitration
Rules then in effect of the American Arbitration Association ("AAA"), by three
arbitrators, one selected by Purchasers, one selected by the other party and the
third selected by the mutual agreement of the first two arbitrators. The
arbitration shall be held in New York, New York, the parties hereto agree and
submit themselves to the exclusive jurisdiction of New York, New York, and
judgment upon any award rendered may be entered in any court having jurisdiction
thereof. The parties agree that (a) the arbitrators shall have no power or
authority to grant punitive or exemplary damages as part of its award; (b) the
cost of the arbitrators and the arbitration shall be borne by the parties
equally, unless otherwise determined by the arbitrators; and (c) the arbitrators
shall have the authority to award, to the prevailing party, reasonable
attorneys' fees and costs of such party's witnesses and experts in connection
with such arbitration. Pre-hearing discovery, and pre-hearing and post-hearing
written briefs shall be permitted at the discretion of the arbitrators. The
substantive law provided in such arbitration shall be a provided in Section (f)
above. The arbitral decision shall be final, binding and conclusive on the
parties. A judgment confirming the award may be given by any court having
jurisdiction over the parties, or that court may vacate, modify or correct the
award in accordance with the prevailing provisions of the applicable law
governing arbitrations.
(h) Binding Nature of Agreement; No Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that no party may assign or transfer its rights
or obligations under this Agreement without the prior written consent of the
other parties hereto.
(i) Confidentiality. In the event the Company desires to issue a press
release promptly after the execution of this agreement, the parties agree to
review and approve the content of such a press release as promptly as possible.
No other public statements or public disclosure shall be made by the Company,
Purchasers, SVP, S.A. and SVP International prior to the issuance of the
approved press release. Other than the content of the approved press release,
the parties hereto intend that the terms of this agreement are confidential and
that neither party shall, without the prior consent of the other parties hereto
disclose or issue any press release or announcement nor permit its respective
employees or agents to disclose or issue any press release or announcement of
the terms of this agreement or the transactions contemplated herein,
9
except that any party may make such disclosures as are reasonable to prospective
lenders, investors, consultants, attorneys and accountants, who shall be placed
under the same confidentiality obligation as the parties have agreed upon this
Section 12(i). Notwithstanding this paragraph (i), the parties may disclose such
information as may be required to be disclosed by the securities laws, a court
of competent jurisdiction or any governmental agency having authority to compel
such disclosure or as otherwise required by law.
Very truly yours,
----------------------------------
Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxx Xxxxx
----------------------------------
Xxx Xxxxxx
AGREED TO AND ACCEPTED:
FIND/SVP, Inc.
By:
----------------------------------
Name:
Title:
SVP, S.A.
By:
----------------------------------
Name:
Title:
SVP INTERNATIONAL
By:
----------------------------------
Name:
Title:
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