Duration and Exercise of Warrant. (a) This Warrant may be exercised as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited financial statements showing the Corporation's actual earnings per share for the year ended December 31, 2000 ("fiscal 2000"), provided that such earnings are not less than $1.93 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's actual fiscal 2000 earnings per share by March 5, 2001. If the Corporation's actual 2000 fiscal earnings is less than $1.93 per share, then this Warrant shall be exercisable as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited statements showing the Corporation's actual earnings per share for the year ended December 31, 2001 ("fiscal 2001"), provided that such earnings are not less than $2.39 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's the actual fiscal 2001 earnings by March 5, 2002. However, in any case, this Warrant shall vest as to 100% of the underlying shares on March 5, 2008. The date this Warrant is first exercisable is hereinafter referred to as the "Exercise Date". The Company shall give prompt notice to the Warrantholder of the Exercise Date in accordance with Section 7.6. This Warrant expires at 5:00 P.M., New York City time on May 19, 2009 (the "Expiration Date"). In addition, in the event of a Change in Control of the Company, the right to exercise 100% of the underlying shares shall immediately vest. A "Change in Control" shall be deemed to have occurred if: (i) any person, other than the Company or an employee benefit plan of the Company, acquires directly or indirectly the Beneficial Ownership (as defined in Section 13(d) of the Securities and Exchange Act of 1934, as amended (the" Exchange Act")) of any voting security of the Company and immediately after such acquisition such Person is, directly or indirectly, the Beneficial Owner of voting securities representing 50% or more of the total voting power of all of the then-outstanding voting securities of the Company; (ii) the individuals (A) who, as of the closing date of the Initial Public Offering, constitute the Board (the "Original Directors") or (B) who thereafter are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors then still in office (such directors becoming "Additional Original Directors" immediately following their election) or (C) who are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors and Additional Original Directors then still in office (such directors also
Appears in 13 contracts
Samples: Warrant Agreement (Fyi Inc), Warrant Agreement (Fyi Inc), Warrant Agreement (Fyi Inc)
Duration and Exercise of Warrant. (a) This Warrant may be exercised as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the CorporationCompany's audited financial statements showing the Corporation's actual earnings per share for the year ended December 31, 2000 ("fiscal 2000"), provided that such earnings are not less than $1.93 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's actual fiscal 2000 earnings per share by March 5, 2001. If the Corporation's actual 2000 fiscal earnings is less than $1.93 per share, then this Warrant shall be exercisable as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited statements showing the CorporationCompany's actual earnings per share for the year ended December 31, 2001 ("fiscal 2001"), provided that such earnings are not less than $2.39 2.28 per share (subject to Section 1.1(d)). Subject to Section 1.1(d), in the event the Company's actual fiscal 2001 earnings are less than $2.28 per share. , but at least $2.23 per share, then this Warrant shall be exercisable as to the percentage indicated across from the designated earnings per share target set forth below: Fiscal 2001 EPS Threshold % of Warrant Exercisable ------------------------- ------------------------ $2.23 50% $2.24 60% $2.25 70% $2.26 80% $2.27 90% The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the CorporationCompany's the actual fiscal 2001 earnings per share by March 5, 2002. However, in any casecase (and subject to Section 1.2), this Warrant shall vest as to 100% of the underlying shares on March 5, 20082010. The date this Warrant is first exercisable as to a portion of the Warrant is hereinafter referred to as the "Exercise Date"" for such portion of the Warrant. The Company shall give prompt notice to the Warrantholder of the Exercise Date in accordance with Section 7.6. This Warrant expires at 5:00 P.M., New York City time on May 19January 24, 2009 2011 (the "Expiration Date"). In addition, in the event of a Change in Control of the Company, the right to exercise 100% of the underlying shares shall immediately vest. A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than the Company or an employee benefit plan of the Company, acquires directly or indirectly the Beneficial Ownership (as defined in Section 13(d) of the Securities and Exchange Act of 1934, as amended (the" the "Exchange Act")) of any voting security of the Company and immediately after such acquisition such Person is, directly or indirectly, the Beneficial Owner of voting securities representing 5030% or more of the total voting power of all of the then-outstanding voting securities of the Company;
(ii) the individuals (A) who, as of the closing date of the Initial Public Offering, constitute the Board (the "Original Directors") or (B) who thereafter are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors then still in office (such directors becoming "Additional Original Directors" immediately following their election) or (C) who are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors and Additional Original Directors then still in office (such directors alsoalso becoming "Additional Original Directors" immediately following their election), cease for any reason to constitute a majority of the members of the Board;
(iii) the stockholders of the Company shall approve a merger, consolidation, recapitalization, or reorganization of the Company, a reverse stock split of the outstanding voting securities of the Company, or consummation of any such transaction if stockholder approval is not sought or obtained, other than any such transaction which would result in at least 75% of the total voting power represented by the voting securities of the surviving entity outstanding immediately after such transaction being Beneficially Owned by the holders of at least 75% of the outstanding voting securities of the Company immediately prior to the transaction, with the voting power of each such continuing holder relative to other such continuing holders not substantially altered in the transaction; or
(iv) the stockholders of the Company shall approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or a substantial portion of the Company's assets (i.e., 50% or more of the total assets of the Company).
(b) The rights represented by this Warrant may be exercised by the Warrantholder of record, in whole, or from time to time in part, by (a) surrender of this Warrant, accompanied by either the Exercise Form annexed hereto, or if the Warrantholder decides to exercise the Warrant pursuant to the broker-assisted cashless exercise program instituted by the Company, an applicable exercise form provided by the Company (the "Exercise Form") duly executed by the Warrantholder of record and specifying the number of Warrant Shares to be purchased, to the Company at the office of the Company located at 0000 XxXxxxxx Xxxxxx, Suite 1000, Dallas, Texas 75204 (or such other office or agency of the Company as it may designate by notice to the Warrantholder at the address of such Warrantholder appearing on the books of the Company) during normal business hours on any day (a "Business Day") other than a Saturday, Sunday or a day on which the New York Stock Exchange is authorized to close or on which the Company is otherwise closed for business (a "Nonbusiness Day") on or after 9:00 A.M. New York City time on the applicable Exercise Date but not later than 5:00 P.M., New York City time, on the Expiration Date (or 5:00 P.M., New York City time, on the next succeeding Business Day, if the Expiration Date is a Nonbusiness Day), (b) delivery of payment to the Company in cash or by certified or official bank check in New York Clearing House Funds, of the Exercise Price for the number of Warrant Shares specified in the Exercise Form (such payment may be made by the Warrantholder directly or by a designated broker pursuant to the broker-assisted cashless exercise program instituted by the Company) and (c) such documentation as to the identity and authority of the Warrantholder as the Company may reasonably request. Such Warrant Shares shall be deemed by the Company to be issued to the Warrantholder as the record holder of such Warrant Shares as of the close of business on the date on which this Warrant shall have been surrendered and payment made for the Warrant Shares as aforesaid. Certificates for the Warrant Shares specified in the Exercise Form shall be delivered to the Warrantholder (or designated broker, as the case may be) as promptly as practicable, and in any event within 10 business days, thereafter. The stock certificates so delivered shall be in denominations of at least 1,000 shares each or such other denomination as may be specified by the Warrantholder and agreed upon by the Company, and shall be issued in the name of the Warrantholder or such other name as shall be designated in the Exercise Form. If this Warrant shall have been exercised only in part, the Company shall, at the time of delivery of the certificates for the Warrant Shares, deliver to the Warrantholder (or designated broker, as the case may be) a new Warrant evidencing the rights to purchase the remaining Warrant Shares, which new Warrant shall in all other respects be identical with this Warrant. No adjustments or payments shall be made on or in respect of Warrant Shares issuable on the exercise of this Warrant for any cash dividends paid or payable to holders of record of Common Stock prior to the date as of which the Warrantholder shall be deemed to be the record holder of such Warrant Shares.
(c) With the consent of the Compensation Committee, and subject at all times to, and only to the extent, if any, permitted under and in accordance with, laws and regulations and other binding obligations or provisions applicable to the Company, the Company may make a loan to the Warrantholder with respect to the exercise of the Warrant, including the payment by the Warrantholder of any or all federal, state and local income or other taxes due in connection with any exercise. The interest on such loan shall be the Company's cost of money plus an additional 0.5% at the time the loan is made and such loan shall be made with recourse against the Warrantholder. The Compensation Committee shall have the full authority to determine any other terms and provisions of such a loan.
(d) In the event the Company sells one or more of its subsidiaries or businesses during fiscal 2001, the earnings targets set forth in Section 1.1
(a) would be reduced by the earnings budgeted for such divested businesses or subsidiaries for the remainder of fiscal 2001 (including a reduction relating to any associated write down of goodwill, if any) and increased by the actual earnings attributable to any funds received as a result of such sale, all as determined by the Compensation Committee.
Appears in 6 contracts
Samples: Warrant Agreement (Fyi Inc), Warrant Agreement (Fyi Inc), Warrant Agreement (Fyi Inc)
Duration and Exercise of Warrant. (a) This Warrant may be exercised as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the CorporationCompany's audited financial statements showing the Corporation's actual earnings per share for the year ended December 31, 2000 ("fiscal 2000"), provided that such earnings are not less than $1.93 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's actual fiscal 2000 earnings per share by March 5, 2001. If the Corporation's actual 2000 fiscal earnings is less than $1.93 per share, then this Warrant shall be exercisable as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited statements showing the CorporationCompany's actual earnings per share for the year ended December 31, 2001 ("fiscal 2001"), provided that such earnings are not less than $2.39 2.28 per share (subject to Section 1.1(d)). Subject to Section 1.1(d), in the event the Company's actual fiscal 2001 earnings are less than $2.28 per share. , but at least $2.23 per share, then this Warrant shall be exercisable as to the percentage indicated across from the designated earnings per share target set forth below: Fiscal 2001 EPS Threshold % of Warrant Exercisable ------------------------- ------------------------ $2.23 50% $2.24 60% $2.25 70% $2.26 80% $2.27 90% The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the CorporationCompany's the actual fiscal 2001 earnings per share by March 5, 2002. However, in any casecase (and subject to Section 1.2), this Warrant shall vest as to 100% of the underlying shares on March 5, 20082010. The date this Warrant is first exercisable as to a portion of the Warrant is hereinafter referred to as the "Exercise Date"" for such portion of the Warrant. The Company shall give prompt notice to the Warrantholder of the Exercise Date in accordance with Section 7.6. This Warrant expires at 5:00 P.M., New York City time on May 19January 24, 2009 2011 (the "Expiration Date"). In addition.
(b) The rights represented by this Warrant may be exercised by the Warrantholder of record, in whole, or from time to time in part, by (a) surrender of this Warrant, accompanied by either the Exercise Form annexed hereto, or if the Warrantholder decides to exercise the Warrant pursuant to the broker-assisted cashless exercise program instituted by the Company, an applicable exercise form provided by the Company (the "Exercise Form") duly executed by the Warrantholder of record and specifying the number of Warrant Shares to be purchased, to the Company at the office of the Company located at 0000 XxXxxxxx Xxxxxx, Suite 1000, Dallas, Texas 75204 (or such other office or agency of the Company as it may designate by notice to the Warrantholder at the address of such Warrantholder appearing on the books of the Company) during normal business hours on any day (a "Business Day") other than a Saturday, Sunday or a day on which the New York Stock Exchange is authorized to close or on which the Company is otherwise closed for business (a "Nonbusiness Day") on or after 9:00 A.M. New York City time on the applicable Exercise Date but not later than 5:00 P.M., New York City time, on the Expiration Date (or 5:00 P.M., New York City time, on the next succeeding Business Day, if the Expiration Date is a Nonbusiness Day), (b) delivery of payment to the Company in cash or by certified or official bank check in New York Clearing House Funds, of the Exercise Price for the number of Warrant Shares specified in the Exercise Form (such payment may be made by the Warrantholder directly or by a designated broker pursuant to the broker-assisted cashless exercise program instituted by the Company) and (c) such documentation as to the identity and authority of the Warrantholder as the Company may reasonably request. Such Warrant Shares shall be deemed by the Company to be issued to the Warrantholder as the record holder of such Warrant Shares as of the close of business on the date on which this Warrant shall have been surrendered and payment made for the Warrant Shares as aforesaid. Certificates for the Warrant Shares specified in the Exercise Form shall be delivered to the Warrantholder (or designated broker, as the case may be) as promptly as practicable, and in any event within 10 business days, thereafter. The stock certificates so delivered shall be in denominations of at least 1,000 shares each or such other denomination as may be specified by the Warrantholder and agreed upon by the Company, and shall be issued in the name of the Warrantholder or such other name as shall be designated in the Exercise Form. If this Warrant shall have been exercised only in part, the Company shall, at the time of delivery of the certificates for the Warrant Shares, deliver to the Warrantholder (or designated broker, as the case may be) a Change new Warrant evidencing the rights to purchase the remaining Warrant Shares, which new Warrant shall in Control all other respects be identical with this Warrant. No adjustments or payments shall be made on or in respect of Warrant Shares issuable on the exercise of this Warrant for any cash dividends paid or payable to holders of record of Common Stock prior to the date as of which the Warrantholder shall be deemed to be the record holder of such Warrant Shares.
(c) With the consent of the Compensation Committee, and subject at all times to, and only to the extent, if any, permitted under and in accordance with, laws and regulations and other binding obligations or provisions applicable to the Company, the right Company may make a loan to the Warrantholder with respect to the exercise 100% of the underlying shares shall immediately vestWarrant, including the payment by the Warrantholder of any or all federal, state and local income or other taxes due in connection with any exercise. A "Change in Control" The interest on such loan shall be deemed the Company's cost of money plus an additional 0.5% at the time the loan is made and such loan shall be made with recourse against the Warrantholder. The Compensation Committee shall have the full authority to have occurred if:determine any other terms and provisions of such a loan.
(id) any person, other than In the event the Company or an employee benefit plan of the Company, acquires directly or indirectly the Beneficial Ownership (as defined in Section 13(d) of the Securities and Exchange Act of 1934, as amended (the" Exchange Act")) of any voting security of the Company and immediately after such acquisition such Person is, directly or indirectly, the Beneficial Owner of voting securities representing 50% sells one or more of its subsidiaries or businesses during fiscal 2001, the total voting power of all of the then-outstanding voting securities of the Company;earnings targets set forth in Section 1.1
(iia) would be reduced by the individuals earnings budgeted for such divested businesses or subsidiaries for the remainder of fiscal 2001 (Aincluding a reduction relating to any associated write down of goodwill, if any) whoand increased by the actual earnings attributable to any funds received as a result of such sale, all as of determined by the closing date of the Initial Public Offering, constitute the Board (the "Original Directors") or (B) who thereafter are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors then still in office (such directors becoming "Additional Original Directors" immediately following their election) or (C) who are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors and Additional Original Directors then still in office (such directors alsoCompensation Committee.
Appears in 3 contracts
Samples: Warrant Agreement (Fyi Inc), Warrant Agreement (Fyi Inc), Warrant Agreement (Fyi Inc)
Duration and Exercise of Warrant. (a) This Warrant may be exercised as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited financial statements showing the Corporation's actual earnings per share for the year ended December 31, 2000 ("fiscal 2000"), provided that such earnings are not less than $1.93 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's actual fiscal 2000 earnings per share by March 5, 2001. If the Corporation's actual 2000 fiscal earnings is less than $1.93 per share, then this Warrant shall be exercisable as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited statements showing the Corporation's actual earnings per share for the year ended December 31, 2001 ("fiscal 2001"), provided that such earnings are not less than $2.39 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's the actual fiscal 2001 earnings by March 5, 2002. However, in any case, this Warrant shall vest as to 100% of the underlying shares on March 5, 2008. The date this Warrant is first exercisable is hereinafter referred to as the "Exercise Date". The Company shall give prompt notice to the Warrantholder of the Exercise Date in accordance with Section 7.6. This Warrant expires at 5:00 P.M., New York City time on May 19, 2009 (the "Expiration Date"). In addition, in the event of a Change in Control of the Company, the right to exercise 100% of the underlying shares shall immediately vest. A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than the Company or an employee benefit plan of the Company, acquires directly or indirectly the Beneficial Ownership (as defined in Section 13(d) of the Securities and Exchange Act of 1934, as amended (the" the "Exchange Act")) of any voting security of the Company and immediately after such acquisition such Person is, directly or indirectly, the Beneficial Owner of voting securities representing 50% or more of the total voting power of all of the then-outstanding voting securities of the Company;
(ii) the individuals (A) who, as of the closing date of the Initial Public Offering, constitute the Board (the "Original Directors") or (B) who thereafter are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors then still in office (such directors becoming "Additional Original Directors" immediately following their election) or (C) who are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors and Additional Original Directors then still in office (such directors also
Appears in 2 contracts
Samples: Warrant Agreement (Fyi Inc), Warrant Agreement (Fyi Inc)
Duration and Exercise of Warrant. (a) This Warrant may be exercised as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the CorporationCompany's audited financial statements showing the Corporation's actual earnings per share for the year ended December 31, 2000 ("fiscal 2000"), provided that such earnings are not less than $1.93 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's actual fiscal 2000 earnings per share by March 5, 2001. If the Corporation's actual 2000 fiscal earnings is less than $1.93 per share, then this Warrant shall be exercisable as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited statements showing the CorporationCompany's actual earnings per share for the year ended December 31, 2001 ("fiscal 2001"), provided that such earnings are not less than $2.39 2.28 per share (subject to Section 1.1(d)). Subject to Section 1.1(d), in the event the Company's actual fiscal 2001 earnings are less than $2.28 per share. , but at least $2.23 per share, then this Warrant shall be exercisable as to the percentage indicated across from the designated earnings per share target set forth below: Fiscal 2001 EPS Threshold % of Warrant Exercisable ------------------------- ------------------------- $2.23 50% $2.24 60% $2.25 70% $2.26 80% $2.27 90% The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the CorporationCompany's the actual fiscal 2001 earnings per share by March 5, 2002. However, in any casecase (and subject to Section 1.2), this Warrant shall vest as to 100% of the underlying shares on March 5, 20082010. The date this Warrant is first exercisable as to a portion of the Warrant is hereinafter referred to as the "Exercise Date"" for such portion of the Warrant. The Company shall give prompt notice to the Warrantholder of the Exercise Date in accordance with Section 7.6. This Warrant expires at 5:00 P.M., New York City time on May 19January 24, 2009 2011 (the "Expiration Date"). In addition, in the event of a Change in Control of the Company, the right to exercise 100% of the underlying shares shall immediately vest. A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than the Company or an employee benefit plan of the Company, acquires directly or indirectly the Beneficial Ownership (as defined in Section 13(d) of the Securities and Exchange Act of 1934, as amended (the" the "Exchange Act")) of any voting security of the Company and immediately after such acquisition such Person is, directly or indirectly, the Beneficial Owner of voting securities representing 5030% or more of the total voting power of all of the then-outstanding voting securities of the Company;
(ii) the individuals (A) who, as of the closing date of the Initial Public Offering, constitute the Board (the "Original Directors") or (B) who thereafter are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors then still in office (such directors becoming "Additional Original Directors" immediately following their election) or (C) who are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors and Additional Original Directors then still in office (such directors alsoalso becoming "Additional Original Directors" immediately following their election), cease for any reason to constitute a majority of the members of the Board;
(iii) the stockholders of the Company shall approve a merger, consolidation, recapitalization, or reorganization of the Company, a reverse stock split of the outstanding voting securities of the Company, or consummation of any such transaction if stockholder approval is not sought or obtained, other than any such transaction which would result in at least 75% of the total voting power represented by the voting securities of the surviving entity outstanding immediately after such transaction being Beneficially Owned by the holders of at least 75% of the outstanding voting securities of the Company immediately prior to the transaction, with the voting power of each such continuing holder relative to other such continuing holders not substantially altered in the transaction; or
(iv) the stockholders of the Company shall approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or a substantial portion of the Company's assets (i.e., 50% or more of the total assets of the Company).
(b) The rights represented by this Warrant may be exercised by the Warrantholder of record, in whole, or from time to time in part, by (a) surrender of this Warrant, accompanied by either the Exercise Form annexed hereto, or if the Warrantholder decides to exercise the Warrant pursuant to the broker-assisted cashless exercise program instituted by the Company, an applicable exercise form provided by the Company (the "Exercise Form") duly executed by the Warrantholder of record and specifying the number of Warrant Shares to be purchased, to the Company at the office of the Company located at 0000 XxXxxxxx Xxxxxx, Suite 1000, Dallas, Texas 75204 (or such other office or agency of the Company as it may designate by notice to the Warrantholder at the address of such Warrantholder appearing on the books of the Company) during normal business hours on any day (a "Business Day") other than a Saturday, Sunday or a day on which the New York Stock Exchange is authorized to close or on which the Company is otherwise closed for business (a "Nonbusiness Day") on or after 9:00 A.M. New York City time on the applicable Exercise Date but not later than 5:00 P.M., New York City time, on the Expiration Date (or 5:00 P.M., New York City time, on the next succeeding Business Day, if the Expiration Date is a Nonbusiness Day), (b) delivery of payment to the Company in cash or by certified or official bank check in New York Clearing House Funds, of the Exercise Price for the number of Warrant Shares specified in the Exercise Form (such payment may be made by the Warrantholder directly or by a designated broker pursuant to the broker-assisted cashless exercise program instituted by the Company) and (c) such documentation as to the identity and authority of the Warrantholder as the Company may reasonably request. Such Warrant Shares shall be deemed by the Company to be issued to the Warrantholder as the record holder of such Warrant Shares as of the close of business on the date on which this Warrant shall have been surrendered and payment made for the Warrant Shares as aforesaid. Certificates for the Warrant Shares specified in the Exercise Form shall be delivered to the Warrantholder (or designated broker, as the case may be) as promptly as practicable, and in any event within 10 business days, thereafter. The stock certificates so delivered shall be in denominations of at least 1,000 shares each or such other denomination as may be specified by the Warrantholder and agreed upon by the Company, and shall be issued in the name of the Warrantholder or such other name as shall be designated in the Exercise Form. If this Warrant shall have been exercised only in part, the Company shall, at the time of delivery of the certificates for the Warrant Shares, deliver to the Warrantholder (or designated broker, as the case may be) a new Warrant evidencing the rights to purchase the remaining Warrant Shares, which new Warrant shall in all other respects be identical with this Warrant. No adjustments or payments shall be made on or in respect of Warrant Shares issuable on the exercise of this Warrant for any cash dividends paid or payable to holders of record of Common Stock prior to the date as of which the Warrantholder shall be deemed to be the record holder of such Warrant Shares.
(c) With the consent of the Compensation Committee, and subject at all times to, and only to the extent, if any, permitted under and in accordance with, laws and regulations and other binding obligations or provisions applicable to the Company, the Company may make a loan to the Warrantholder with respect to the exercise of the Warrant, including the payment by the Warrantholder of any or all federal, state and local income or other taxes due in connection with any exercise. The interest on such loan shall be the Company's cost of money plus an additional 0.5% at the time the loan is made and such loan shall be made with recourse against the Warrantholder. The Compensation Committee shall have the full authority to determine any other terms and provisions of such a loan.
(d) In the event the Company sells one or more of its subsidiaries or businesses during fiscal 2001, the earnings targets set forth in Section 1.1
(a) would be reduced by the earnings budgeted for such divested businesses or subsidiaries for the remainder of fiscal 2001 (including a reduction relating to any associated write down of goodwill, if any) and increased by the actual earnings attributable to any funds received as a result of such sale, all as determined by the Compensation Committee.
Appears in 1 contract
Samples: Warrant Agreement (Fyi Inc)
Duration and Exercise of Warrant. (a) This Warrant warrant may be exercised as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the CorporationCompany's audited financial statements showing the Corporation's actual earnings per share for the year ended December 31, 2000 ("fiscal 2000"), provided that such earnings are not less than $1.93 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's actual fiscal 2000 earnings per share by March 5, 2001. If the Corporation's actual 2000 fiscal earnings is less than $1.93 per share, then this Warrant shall be exercisable as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited statements showing the CorporationCompany's actual earnings per share for the year ended December 31, 2001 ("fiscal 2001"), provided that such earnings are not less than $2.39 2.28 per share (subject to Section 1.1(d)). Subject to Section 1.1(d), in the event the Company's actual fiscal 2001 earnings are less than $2.28 per share. , but at least $2.23 per share, then this Warrant shall be exercisable as to the percentage indicated across from the designated earnings per share target set forth below: Fiscal 2001 EPS Threshold % of Warrant Exercisable ------------------------- ------------------------ $2.23 50% $2.24 60% $2.25 70% $2.26 80% $2.27 90% The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the CorporationCompany's the actual fiscal 2001 earnings per share by March 5, 2002. However, in any casecase (and subject to Section 1.2), this Warrant shall vest as to 100% of the underlying shares on March 5, 20082010. The date this Warrant is first exercisable as to a portion of the Warrant is hereinafter referred to as the "Exercise Date"" for such portion of the Warrant. The Company shall give prompt notice to the Warrantholder of the Exercise Date in accordance with Section 7.6. This Warrant expires at 5:00 P.M., New York City time on May 19January 24, 2009 2011 (the "Expiration Date"). In addition, in the event of a Change in Control of the Company, the right to exercise 100% of the underlying shares shall immediately vest. A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than the Company or an employee benefit plan of the Company, acquires directly or indirectly the Beneficial Ownership (as defined in Section 13(d) of the Securities and Exchange Act of 1934, as amended (the" the "Exchange Act")) of any voting security of the Company and immediately after such acquisition such Person is, directly or indirectly, the Beneficial Owner of voting securities representing 5030% or more of the total voting power of all of the then-outstanding voting securities of the Company;
(ii) the individuals (A) who, as of the closing date of the Initial Public Offering, constitute the Board (the "Original Directors") or (B) who thereafter are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors then still in office (such directors becoming "Additional Original Directors" immediately following their election) or (C) who are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors and Additional Original Directors then still in office (such directors alsoalso becoming "Additional Original Directors" immediately following their election), cease for any reason to constitute a majority of the members of the Board;
(iii) the stockholders of the Company shall approve a merger, consolidation, recapitalization, or reorganization of the Company, a reverse stock split of the outstanding voting securities of the Company, or consummation of any such transaction if stockholder approval is not sought or obtained, other than any such transaction which would result in at least 75% of the total voting power represented by the voting securities of the surviving entity outstanding immediately after such transaction being Beneficially Owned by the holders of at least 75% of the outstanding voting securities of the Company immediately prior to the transaction, with the voting power of each such continuing holder relative to other such continuing holders not substantially altered in the transaction; or
(iv) the stockholders of the Company shall approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or a substantial portion of the Company's assets (i.e., 50% or more of the total assets of the Company).
(b) The rights represented by this Warrant may be exercised by the Warrantholder of record, in whole, or from time to time in part, by (a) surrender of this Warrant, accompanied by either the Exercise Form annexed hereto, or if the Warrantholder decides to exercise the Warrant pursuant to the broker-assisted cashless exercise program instituted by the Company, an applicable exercise form provided by the Company (the "Exercise Form") duly executed by the Warrantholder of record and specifying the number of Warrant Shares to be purchased, to the Company at the office of the Company located at 0000 XxXxxxxx Xxxxxx, Suite 1000, Dallas, Texas 75204 (or such other office or agency of the Company as it may designate by notice to the Warrantholder at the address of such Warrantholder appearing on the books of the Company) during normal business hours on any day (a "Business Day") other than a Saturday, Sunday or a day on which the New York Stock Exchange is authorized to close or on which the Company is otherwise closed for business (a "Nonbusiness Day") on or after 9:00 A.M. New York City time on the applicable Exercise Date but not later than 5:00 P.M., New York City time, on the Expiration Date (or 5:00 P.M., New York City time, on the next succeeding Business Day, if the Expiration Date is a Nonbusiness Day), (b) delivery of payment to the Company in cash or by certified or official bank check in New York Clearing House Funds, of the Exercise Price for the number of Warrant Shares specified in the Exercise Form (such payment may be made by the Warrantholder directly or by a designated broker pursuant to the broker-assisted cashless exercise program instituted by the Company) and (c) such documentation as to the identity and authority of the Warrantholder as the Company may reasonably request. Such Warrant Shares shall be deemed by the Company to be issued to the Warrantholder as the record holder of such Warrant Shares as of the close of business on the date on which this Warrant shall have been surrendered and payment made for the Warrant Shares as aforesaid. Certificates for the Warrant Shares specified in the Exercise Form shall be delivered to the Warrantholder (or designated broker, as the case may be) as promptly as practicable, and in any event within 10 business days, thereafter. The stock certificates so delivered shall be in denominations of at least 1,000 shares each or such other denomination as may be specified by the Warrantholder and agreed upon by the Company, and shall be issued in the name of the Warrantholder or such other name as shall be designated in the Exercise Form. If this Warrant shall have been exercised only in part, the Company shall, at the time of delivery of the certificates for the Warrant Shares, deliver to the Warrantholder (or designated broker, as the case may be) a new Warrant evidencing the rights to purchase the remaining Warrant Shares, which new Warrant shall in all other respects be identical with this Warrant. No adjustments or payments shall be made on or in respect of Warrant Shares issuable on the exercise of this Warrant for any cash dividends paid or payable to holders of record of Common Stock prior to the date as of which the Warrantholder shall be deemed to be the record holder of such Warrant Shares.
(c) With the consent of the Compensation Committee, and subject at all times to, and only to the extent, if any, permitted under and in accordance with, laws and regulations and other binding obligations or provisions applicable to the Company, the Company may make a loan to the Warrantholder with respect to the exercise of the Warrant, including the payment by the Warrantholder of any or all federal, state and local income or other taxes due in connection with any exercise. The interest on such loan shall be the Company's cost of money plus an additional 0.5% at the time the loan is made and such loan shall be made with recourse against the Warrantholder. The Compensation Committee shall have the full authority to determine any other terms and provisions of such a loan.
(d) In the event the Company sells one or more of its subsidiaries or businesses during fiscal 2001, the earnings targets set forth in Section 1.1
(a) would be reduced by the earnings budgeted for such divested businesses or subsidiaries for the remainder of fiscal 2001 (including a reduction relating to any associated write down of goodwill, if any) and increased by the actual earnings attributable to any funds received as a result of such sale, all as determined by the Compensation Committee.
Appears in 1 contract
Samples: Warrant Agreement (Fyi Inc)
Duration and Exercise of Warrant. (a) This Warrant may be exercised as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited financial statements showing the Corporation's actual earnings per share for the year ended December 31, 2000 ("fiscal 2000"), provided that such earnings are not less than $1.93 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's actual fiscal 2000 earnings per share by March 5, 2001. If the Corporation's actual 2000 fiscal earnings is less than $1.93 per share, then this Warrant shall be exercisable as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited statements showing the Corporation's actual earnings per share for the year ended December 31, 2001 ("fiscal 2001"), provided that such earnings are not less than $2.39 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's the actual fiscal 2001 earnings by March 5, 2002. However, in any case, this Warrant shall vest as to 100% of the underlying shares on March 5, 2008. The date this Warrant is first exercisable is hereinafter referred to as the "Exercise Date". The Company shall give prompt notice to the Warrantholder of the Exercise Date in accordance with Section 7.6. This Warrant expires at 5:00 P.M., New York City time on May 19, 2009 (the "Expiration Date"). In addition, in the event of a Change in Control of the Company, the right to exercise 100% of the underlying shares shall immediately vest. A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than the Company or an employee benefit plan of the Company, acquires directly or indirectly the Beneficial Ownership (as defined in Section 13(d) of the Securities and Exchange Act of 1934, as amended (the" Exchange Act")) of any voting security of the Company and immediately after such acquisition such Person is, directly or indirectly, the Beneficial Owner of voting securities representing 50% or more of the total voting power of all of the then-outstanding voting securities of the Company;
(ii) the individuals (A) who, as of the closing date of the Initial Public Offering, constitute the Board (the "Original Directors") or (B) who thereafter are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors then still in office (such directors becoming "Additional Original Directors" immediately following their election) or (C) who are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors and Additional Original Directors then still in office (such directors alsoalso becoming "Additional Original Directors" immediately following their election) (such individuals being the "Continuing Directors"), cease for any reason to constitute a majority of the members of the Board;
(iii) the stockholders of the Company shall approve a merger, consolidation, recapitalization, or reorganization of the Company, a reverse stock split of the outstanding voting securities of the Company, or consummation of any such transaction if stockholder approval is not sought or obtained, other than any such transaction which would result in at least 75% of the total voting power represented by the voting securities of the surviving entity outstanding immediately after such transaction being Beneficially Owned by at least 75% of the holders of the outstanding voting securities of the Company immediately prior to the transaction, with the voting power of each such continuing holder relative to other such continuing holders not substantially altered in the transaction; or
(iv) the stockholders of the Company shall approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or a substantial portion of the Company's assets (i.e., 50% or more of the total assets of the Company).
(b) The rights represented by this Warrant may be exercised by the Warrantholder of record, in whole, or from time to time in part, by (a) surrender of this Warrant, accompanied by either the Exercise Form annexed hereto, or if the Warrantholder decides to exercise the Warrant pursuant to the broker-assisted cashless exercise program instituted by the Company, an applicable exercise form provided by the Company (the "Exercise Form") duly executed by the Warrantholder of record and specifying the number of Warrant Shares to be purchased, to the Company at the office of the Company located at 3232 XxXxxxxx Xxxxxx, Suite 900, Dallas, Texas 75204 (or such other office or agency of the Company as it may designate by notice to the Warrantholder at the address of such Warrantholder appearing on the books of the Company) during normal business hours on any day (a "Business Day") other than a Saturday, Sunday or a day on which the New York Stock Exchange is authorized to close or on which the Company is otherwise closed for business (a "Nonbusiness Day") on or after 9:00 A.M. New York City time on the Exercise Date but not later than 5:00 P.M., New York City time, on the Expiration Date (or 5:00 P.M., New York City time, on the next succeeding Business Day, if the Expiration Date is a Nonbusiness Day), (b) delivery of payment to the Company in cash or by certified or official bank check in New York Clearing House Funds, of the Exercise Price for the number of Warrant Shares specified in the Exercise Form (such payment may be made by the Warrantholder directly or by a designated broker pursuant to the broker-assisted cashless exercise program instituted by the Company) and (c) such documentation as to the identity and authority of the Warrantholder as the Company may reasonably request. Such Warrant Shares shall be deemed by the Company to be issued to the Warrantholder as the record holder of such Warrant Shares as of the close of business on the date on which this Warrant shall have been surrendered and payment made for the Warrant Shares as aforesaid. Certificates for the Warrant Shares specified in the Exercise Form shall be delivered to the Warrantholder (or designated broker, as the case may be) as promptly as practicable, and in any event within 10 business days, thereafter. The stock certificates so delivered shall be in denominations of at least 1,000 shares each or such other denomination as may be specified by the Warrantholder and agreed upon by the Company, and shall be issued in the name of the Warrantholder or such other name as shall be designated in the Exercise Form. If this Warrant shall have been exercised only in part, the Company shall, at the time of delivery of the certificates for the Warrant Shares, deliver to the Warrantholder (or designated broker, as the case may be) a new Warrant evidencing the rights to purchase the remaining Warrant Shares, which new Warrant shall in all other respects be identical with this Warrant. No adjustments or payments shall be made on or in respect of Warrant Shares issuable on the exercise of this Warrant for any cash dividends paid or payable to holders of record of Common Stock prior to the date as of which the Warrantholder shall be deemed to be the record holder of such Warrant Shares.
(c) With the consent of the Compensation Committee, and subject at all times to, and only to the extent, if any, permitted under and in accordance with, laws and regulations and other binding obligations or provisions applicable to the Company, the Company may make a loan to the Warrantholder with respect to the exercise of the Warrant, including the payment by the Warrantholder of any or all federal, state and local income or other taxes due in connection with any exercise. The interest on such loan shall be the Company's cost of money plus an additional 0.5% at the time the loan is made and such loan shall be made with recourse against the Warrantholder. The Compensation Committee shall have the full authority to determine any other terms and provisions of such a loan.
Appears in 1 contract
Samples: Warrant Agreement (Fyi Inc)
Duration and Exercise of Warrant. (a) This Warrant may be exercised as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the CorporationCompany's audited financial statements showing the Corporation's actual earnings per share for the year ended December 31, 2000 ("fiscal 2000"), provided that such earnings are not less than $1.93 per share. The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the Corporation's actual fiscal 2000 earnings per share by March 5, 2001. If the Corporation's actual 2000 fiscal earnings is less than $1.93 per share, then this Warrant shall be exercisable as to 100% of the underlying shares at any time following the date of receipt by the Compensation Committee of the Board of Directors of the Corporation's audited statements showing the CorporationCompany's actual earnings per share for the year ended December 31, 2001 ("fiscal 2001"), provided that such earnings are not less than $2.39 2.28 per share (subject to Section 1.1(d)). Subject to Section 1.1(d), in the event the Company's actual fiscal 2001 earnings are less than $2.28 per share. , but at least $2.23 per share, then this Warrant shall be exercisable as to the percentage indicated across from the designated earnings per share target set forth below: Fiscal 2001 EPS Threshold % of Warrant Exercisable ------------------------- ------------------------ $2.23 50% $2.24 60% $2.25 70% $2.26 80% $2.27 90% The Company shall use its best efforts to deliver to the Compensation Committee the audited financial statements showing the CorporationCompany's the actual fiscal 2001 earnings per share by March 5, 2002. However, in any casecase (and subject to Section 1.2), this Warrant shall vest as to 100% of the underlying shares on March 5, 20082010. The date this Warrant is first exercisable as to a portion of the Warrant is hereinafter referred to as the "Exercise Date"" for such portion of the Warrant. The Company shall give prompt notice to the Warrantholder of the Exercise Date in accordance with Section 7.6. This Warrant expires at 5:00 P.M., New York City time on May 19March 22, 2009 2011 (the "Expiration Date"). In addition, in the event of a Change in Control of the Company, the right to exercise 100% of the underlying shares shall immediately vest. A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than the Company or an employee benefit plan of the Company, acquires directly or indirectly the Beneficial Ownership (as defined in Section 13(d) of the Securities and Exchange Act of 1934, as amended (the" the "Exchange Act")) of any voting security of the Company and immediately after such acquisition such Person is, directly or indirectly, the Beneficial Owner of voting securities representing 5030% or more of the total voting power of all of the then-outstanding voting securities of the Company;
(ii) the individuals (A) who, as of the closing date of the Initial Public Offering, constitute the Board (the "Original Directors") or (B) who thereafter are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors then still in office (such directors becoming "Additional Original Directors" immediately following their election) or (C) who are elected to the Board and whose election, or nomination for election, to the Board was approved by a vote of at least two-thirds (2/3) of the Original Directors and Additional Original Directors then still in office (such directors alsoalso becoming "Additional Original Directors" immediately following their election), cease for any reason to constitute a majority of the members of the Board;
(iii) the stockholders of the Company shall approve a merger, consolidation, recapitalization, or reorganization of the Company, a reverse stock split of the outstanding voting securities of the Company, or consummation of any such transaction if stockholder approval is not sought or obtained, other than any such transaction which would result in at least 75% of the total voting power represented by the voting securities of the surviving entity outstanding immediately after such transaction being Beneficially Owned by the holders of at least 75% of the outstanding voting securities of the Company immediately prior to the transaction, with the voting power of each such continuing holder relative to other such continuing holders not substantially altered in the transaction; or
(iv) the stockholders of the Company shall approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or a substantial portion of the Company's assets (i.e., 50% or more of the total assets of the Company).
(b) The rights represented by this Warrant may be exercised by the Warrantholder of record, in whole, or from time to time in part, by (a) surrender of this Warrant, accompanied by either the Exercise Form annexed hereto, or if the Warrantholder decides to exercise the Warrant pursuant to the broker-assisted cashless exercise program instituted by the Company, an applicable exercise form provided by the Company (the "Exercise Form") duly executed by the Warrantholder of record and specifying the number of Warrant Shares to be purchased, to the Company at the office of the Company located at 0000 XxXxxxxx Xxxxxx, Suite 1000, Dallas, Texas 75204 (or such other office or agency of the Company as it may designate by notice to the Warrantholder at the address of such Warrantholder appearing on the books of the Company) during normal business hours on any day (a "Business Day") other than a Saturday, Sunday or a day on which the New York Stock Exchange is authorized to close or on which the Company is otherwise closed for business (a "Nonbusiness Day") on or after 9:00 A.M. New York City time on the applicable Exercise Date but not later than 5:00 P.M., New York City time, on the Expiration Date (or 5:00 P.M., New York City time, on the next succeeding Business Day, if the Expiration Date is a Nonbusiness Day), (b) delivery of payment to the Company in cash or by certified or official bank check in New York Clearing House Funds, of the Exercise Price for the number of Warrant Shares specified in the Exercise Form (such payment may be made by the Warrantholder directly or by a designated broker pursuant to the broker-assisted cashless exercise program instituted by the Company) and (c) such documentation as to the identity and authority of the Warrantholder as the Company may reasonably request. Such Warrant Shares shall be deemed by the Company to be issued to the Warrantholder as the record holder of such Warrant Shares as of the close of business on the date on which this Warrant shall have been surrendered and payment made for the Warrant Shares as aforesaid. Certificates for the Warrant Shares specified in the Exercise Form shall be delivered to the Warrantholder (or designated broker, as the case may be) as promptly as practicable, and in any event within 10 business days, thereafter. The stock certificates so delivered shall be in denominations of at least 1,000 shares each or such other denomination as may be specified by the Warrantholder and agreed upon by the Company, and shall be issued in the name of the Warrantholder or such other name as shall be designated in the Exercise Form. If this Warrant shall have been exercised only in part, the Company shall, at the time of delivery of the certificates for the Warrant Shares, deliver to the Warrantholder (or designated broker, as the case may be) a new Warrant evidencing the rights to purchase the remaining Warrant Shares, which new Warrant shall in all other respects be identical with this Warrant. No adjustments or payments shall be made on or in respect of Warrant Shares issuable on the exercise of this Warrant for any cash dividends paid or payable to holders of record of Common Stock prior to the date as of which the Warrantholder shall be deemed to be the record holder of such Warrant Shares.
(c) With the consent of the Compensation Committee, and subject at all times to, and only to the extent, if any, permitted under and in accordance with, laws and regulations and other binding obligations or provisions applicable to the Company, the Company may make a loan to the Warrantholder with respect to the exercise of the Warrant, including the payment by the Warrantholder of any or all federal, state and local income or other taxes due in connection with any exercise. The interest on such loan shall be the Company's cost of money plus an additional 0.5% at the time the loan is made and such loan shall be made with recourse against the Warrantholder. The Compensation Committee shall have the full authority to determine any other terms and provisions of such a loan.
(d) In the event the Company sells one or more of its subsidiaries or businesses during fiscal 2001, the earnings targets set forth in Section 1.1
(a) would be reduced by the earnings budgeted for such divested businesses or subsidiaries for the remainder of fiscal 2001 (including a reduction relating to any associated write down of goodwill, if any) and increased by the actual earnings attributable to any funds received as a result of such sale, all as determined by the Compensation Committee.
Appears in 1 contract
Samples: Warrant Agreement (Fyi Inc)
