Exhibit 4.5
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. 15
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.
Xxxxxx 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"), Sixteen Thousand One Hundred (16,100)
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.
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. Xxxxxx 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:
--------------------------------
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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