EXHIBIT 10.74
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 33
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 XXX X. 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"), one hundred thousand (100,000) 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. 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) 33 1/3% of the underlying
shares from and after 9:00 A.M. New York City time on March 16, 2001 (the "First
Exercise Date"); (ii) 33 1/3%
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of the underlying shares on March 16, 2002 (the "Second Exercise Date"); and
the remaining (iii) 33 1/3% of the underlying shares on March 16, 2003 (the
"Third Exercise Date") to and including 5:00 P.M. New York City time on March
16, 2010 (the "Expiration Date"). Each of the First Exercise Date, the
Second Exercise Date and the Third 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")."
(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.
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
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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 EXERCISE UPON CHANGE OF CONTROL. In the event of 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) 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 Company's initial public offering, constitute the Board of
Directors of the Company (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
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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 Xxx X. 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.
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.
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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
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:
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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
(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.
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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.
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.
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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.
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.
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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.
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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.
_____________________
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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