NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 42
WARRANT
to
PURCHASE COMMON STOCK
of
F.Y.I. INCORPORATED
****************************************
This certifies that, for good and valuable consideration,
F.Y.I. Incorporated, a Delaware corporation (the "Company"), grants to XXXXXXXX
XXXX or permitted registered assigns (the "Warrantholder" or "Warrantholders"),
the right to subscribe for and purchase from the Company, at $26.375 per share
(the "Exercise Price"), twelve thousand three hundred seventy-five (12,375)
shares of the Company's Common Stock, par value $0.01 per share (the "Common
Stock"), subject to the provisions and upon the terms and conditions herein set
forth. The Exercise Price and the number of Warrant Shares are subject to
adjustment from time to time as provided in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase all of the
underlying shares set forth above from and after (i) the Company's
determination that during calendar year 2000 the Initial SBU EBT (as
defined below) of the Company's FYI Image strategic business unit is
equal to or greater than $26,057,000 plus any Acquired SBU EBT (as
1
defined below) or (ii) if the condition set forth in clause (i) of this
subsection 1.1(a) is not satisfied, March 16, 2009 if at such time Xx.
Xxxx is an employee of the Company (each of the events set forth in
clauses (i) and (ii) hereof, an "Exercise Date" and collectively from
time to time, the "Exercise Dates"). For purposes of this Warrant,
"Initial SBU EBT" shall mean the earnings before taxes of the entities
within the FYI Image strategic business unit at the date of this
Warrant and "Acquired SBU EBT" shall mean the earnings before taxes of
entities or assets within such business unit acquired after the date of
this Warrant and during calendar year 2000 and thereafter managed by
Xx. Xxxx on a pro rata basis for the balance of such year, in each
event based upon generally accepted accounting principles consistently
applied and including all operating business expenses and interest on
capital expenditures in excess of associated goodwill and excluding any
pro forma amortization of goodwill associated with the purchase
proceeds based on a thirty (30) year amortization schedule (Initial SBU
EBT and Acquired SBU EBT, together "SBU EBT"). The Company shall
complete its calculation of SBU EBT for calendar year 2000 on or before
May 15, 2001. In the event that Initial SBU EBT for calendar year 2000
is determined to be $26,057,000 or greater plus any Acquired SBU EBT,
this Warrant shall be fully exercisable to and including 5:00 p.m. New
York City time on March 16, 2010; in the event that Initial SBU EBT for
calendar year 2000 is determined to be less than $26,057,000, this
Warrant shall only be exercisable in accordance with subsection
1.1(a)(ii) above.
(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:
(i) 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, Xxxxx 000, Xxxxxx, Xxxxx 00000
(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. on the Expiration Date (or 5:00 P.M. on the next
succeeding Business Day, if the Expiration Date is a Nonbusiness Day),
(ii) 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
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the broker-assisted cashless exercise program instituted by the
Company, subject to subsection 1.5 herein) and
(iii) 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 one thousand (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, if permitted by subsection 1.5 and in
accordance with the provisions thereof, 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.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. Subject to subsection
1.3, this Warrant shall not be exercisable, and no Warrant Shares shall be
issued hereunder, prior to 9:00 A.M. New York City time on the First Exercise
Date.
1.3 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON FOLLOWING CHANGE
OF CONTROL. Upon termination of Xxxxxxxx Xxxx'x employment with the Company
"without cause" or for "good reason" as described in Xxxxxxxx Xxxx'x Employment
Agreement with the Company at any time during the term of this Warrant following
a Change in Control (as defined below), this Warrant shall immediately vest in
its entirety with respect to the Warrantholder's right to purchase all of the
shares underlying the Warrant and may be exercised in whole or in part from time
to time through and including the Expiration Date. 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
3
(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 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
outstanding voting securities, 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 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).
In the event of Xxxxxxxx Xxxx'x death prior to the Expiration Date, this Warrant
may be exercised to the extent then exercisable by Xx. Xxxx'x legal
representative through the Expiration Date.
1.4 PAYMENT OF TAXES. The issuance of certificates for Warrant
Shares shall be made without charge to the Warrantholder for any stock transfer
or other issuance tax in respect thereto; PROVIDED, HOWEVER, that the
Warrantholder shall be required to pay any and all taxes which may be payable in
respect to any transfer involved in the issuance and delivery of any
certificates for Warrant Shares in a name other than that of the then
Warrantholder as reflected upon the books of the Company.
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1.5 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
5
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
6
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than March 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
7
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
8
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
0000 XxXxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number of Warrant
Shares is involved, such number shall be appropriately adjusted to reflect any
stock split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
9
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Xx X. Xxxxxx, Xx.
-----------------------
Name: Xx X. Xxxxxx, Xx.
Title: President and
Chief Executive Officer
Dated: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby
irrevocably elects to exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares and herewith tenders payment for such
Warrant Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is
_____________________________________.
Date _________________ Signature _________________________
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