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EXHIBIT 4.4
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, MAY 19, 2009
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No. 16
WARRANT
to
PURCHASE COMMON STOCK
of
F.Y.I. INCORPORATED
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This certifies that, for good and valuable consideration, F.Y.I.
Incorporated, a Delaware corporation (the "Company"), grants to Xxxxxx Xxxxxxxxx
or permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $26.75 per share (the
"Exercise Price"), Fifteen Thousand Seven Hundred (15,700) 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 Section 5.
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1. Duration and Exercise of Warrant; Limitation Exercise Payment of
Taxes.
a. 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
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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
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., 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
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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.
1.2 Vesting and Exercise. This Warrant may be vested and, once vested,
may be exercised whether or not, at the time of such vesting or exercise, as the
case may be, Xx. Xxxxxxxxx is an Employee of the Company. 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 Section 1.1, shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall cease.
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 Exercise Date.
1.3 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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1.4 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, 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.
2. 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.
3. Exchange, Loss or Destruction of Warrant.
If permitted by Section 1.4 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 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.
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4. 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 Section
1.1 or in Section 3.
5. 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:
5.1 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
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(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 Section 5.1) 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.
5.2 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.
5.3 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.
5.4 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.
5.5 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 5.5 shall apply similarly
to successive consolidations, mergers, sales, transfers or leases.
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6. Registration Rights of Warrant Shares on Form S-8.
On or prior to September 30, 1999, 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. The Company shall use its best efforts to list the Warrant Shares on any
securities exchange (or on the Nasdaq National Market) on which other shares of
Common Stock are listed.
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 holder 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.
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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: Xx X. Xxxxxx, Xx.
(b) if to any Warrantholder or holder of Warrant Shares, addressed to
the address of such person 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 which 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 Section 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.
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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.
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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.
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Name: Xx X. Xxxxxx, Xx.
Title: President and Chief Executive
Officer
Dated: May 19, 1999
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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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