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, JANUARY 12, 2010.
****************************************
Number 25
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 XXXXXXX X.
XXXXXXX or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$29.25 per share (the "Exercise Price"), 10,000 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
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 (i) 20% of the
underlying shares from and after 9:00 A.M. New York City time on January
12, 2001 (the "First Exercise Date"); (ii) 20% of the underlying shares on
January 12, 2002 (the "Second Exercise Date"); (iii) 20% of the underlying
shares on January 12, 2003 (the "Third Exercise Date"); (iv) 20% of the
underlying shares on January 12, 2004 (the "Fourth Exercise Date"); and (v)
20% of the underlying shares on January 12, 2005 (the "Fifth Exercise
Date") to and including 5:00 P.M. New York City time on January 12, 2010
(the "Expiration Date"). Each of the First Exercise Date, the Second
Exercise Date, the Third Exercise Date, the Fourth Exercise Date and the
Fifth Exercise Date are hereinafter referred to from time to time, as
applicable, as the "Exercise Date" and collectively from time to time as
the "Exercise Dates")." 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 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;
2
(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).
(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 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.
3
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. 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 EXERCISE UPON TERMINATION. Upon termination of Xxxxxxx X. Xxxxxxx'x
employment with the Company for good reason or without cause, this Warrant may
be exercised to the extent it has vested as of such date and to and including
the Expiration Date. Upon termination of Xxxxxxx X. Xxxxxxx'x employment with
the Company by Xx. Xxxxxxx without good reason or by the Company with cause,
even if this Warrant has vested as of such date, this Warrant shall cease to be
exercisable and shall become void and all rights of the Warrantholder hereunder
shall cease. If Xxxxxxx X. Xxxxxxx'x employment is terminated prior to the
vesting of this Warrant, this Warrant shall cease to be exercisable and shall
become void and all rights of the Warrantholder hereunder shall cease. Subject
to the foregoing, in the event of Xxxxxxx X. Xxxxxxx'x death, this Warrant may
be exercised by Xxxxxxx X. Xxxxxxx'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
4
certificates for Warrant Shares in a name other than that of the then
Warrantholder as reflected upon the books of the Company.
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.
5
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 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
6
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
(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.
7
6. REGISTRATION RIGHTS. Not later than January 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.
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.
8
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.
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.
9
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.
10
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: January 12, 2000
11
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 _________________________
12
