1
EXHIBIT 4.12
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
****************************************
No. 23
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"), Ten Thousand (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 Section 5.
2
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 25% from and after
9:00 A.M. New York City time on May 19, 2001 (the "Initial Exercise Date") and
the remaining 75% of the underlying shares on May 19, 2002 (the "Second Exercise
Date"). The Initial Exercise Date or the Second Exercise Date, as applicable, is
hereinafter referred to as the "Exercise Date". 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 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
2
3
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 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
3
4
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 Limitation on Exercise. This Warrant may only be vested
if, at the time of such vesting, Xx. Xxxxxx is an Employee of the Company,
except as provided in Section 1.3. 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 Exercise Upon Termination. Upon termination of Xx.
Xxxxxx'x employment with the Company, this Warrant may be exercised during the
three month period following such termination of employment, but only to the
extent that this Warrant was exercisable immediately prior to such termination
of employment. Notwithstanding the foregoing, if such termination is for cause,
the right to exercise this Warrant shall terminate upon such termination. In no
event shall this Warrant be exercisable for more than the maximum number of
shares that the Warrantholder was entitled to purchase at the date of
termination of the relationship with the Company. Subject to the foregoing, in
the event of Xx. Xxxxxx'x death, this Warrant may be exercised by Xx. Xxxxxx'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 Divisibility of Warrant. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of
4
5
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 1.5 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.
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
5
6
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
(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,
6
7
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.
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
7
8
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.
8
9
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.
9
10
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
11
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: May 19, 1999
11
12
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
