<PAGE> 1
As filed with the Securities and Exchange Commission on September 17, 1999
REGISTRATION NO. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
F.Y.I. INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 75-2560895
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
--------------------
3232 MCKINNEY AVENUE
SUITE 900
DALLAS, TEXAS 75204
(214) 953-7555
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-------------------
WARRANTS ISSUED TO EMPLOYEES
(Full title of the Plan)
---------------------
ED H. BOWMAN, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
F.Y.I. INCORPORATED
3232 MCKINNEY AVENUE, SUITE 900
(214) 953-7555
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
--------------------
COPIES TO:
<TABLE>
<S> <C>
CHRISTOPHER T. JENSEN, ESQ. MARGOT T. LEBENBERG, ESQ.
MORGAN, LEWIS & BOCKIUS LLP SENIOR VICE PRESIDENT, SECRETARY
101 PARK AVENUE AND GENERAL COUNSEL
NEW YORK, NEW YORK 10178 F.Y.I. INCORPORATED
(212) 309-6000 3232 MCKINNEY AVENUE
SUITE 900
DALLAS, TEXAS 75204
(214) 953-7555
</TABLE>
===============================================================================
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE OFFERING AGGREGATE OFFERING REGISTRATION FEE
BE REGISTERED REGISTERED (1) PRICE PER SHARE PRICE (3)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per
share 206,300 $26.75(2) $5,518,525 $1,534.15
==============================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), the number of shares being registered shall be
adjusted to include any additional shares which may become issuable as a
result of stock splits, stock dividends or similar transactions in
accordance with the anti-dilution provisions of the warrants granted to
the warrantholders.
(2) Calculated pursuant to Rule 457(h) for the purpose of calculating the
registration fee, based upon the price at which outstanding warrants may
be exercised.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and Exchange
Commission (the "Commission") by F.Y.I. Incorporated, a Delaware corporation
(the "Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed with the Commission on March 17, 1999.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, filed with the Commission on May 13, 1999.
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999, filed with the Commission on August 12, 1999.
(d) The Company's Current Report on Form 8-K (dated August 13, 1999), filed
with the Commission on August 20, 1999.
(e) The description of the Common Stock, registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), contained in the
Company's Registration Statement on Form S-1 (Reg. No. 33-98608) and
incorporated by reference in the Company's Registration Statement on Form 8-A
(File No. 0-27444), including any amendments or reports filed for the purpose
of updating any such description.
In addition, all reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such reports and documents.
Any statement contained herein, or in a document, all or a portion of which
is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
II-1
<PAGE> 4
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Bylaws provide that the Company shall,
to the fullest extent permitted by Section 145 of the General Corporation Law
of the State of Delaware, as amended from time to time (the "DGCL"), indemnify
its officers and directors as permitted pursuant thereto.
Section 145 of the DGCL permits a corporation, under specified
circumstances, to indemnify its directors, officers, employees or agents
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlements actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by third parties by reason of the fact that
they were or are directors, officers, employees or agents of the corporation,
if such directors, officers, employees or agents acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal action or proceeding, had
no reason to believe their conduct was unlawful. In an action by or in the
right of the corporation, indemnification may be made only for expenses
actually and reasonably incurred by directors, officers, employees or agents in
connection with the defense or settlement of an action or suit, and only with
respect to a matter as to which they shall have acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interest of
the corporation, except that no indemnification shall be made if such person
shall have been adjudged liable to the corporation, unless and only to the
extent that the court in which the action or suit was brought shall determine
upon application that the defendant directors, officers, employees or agents
are fairly and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
Article Seven of the Company's Amended and Restated Certificate of
Incorporation provides that the Company's directors will not be personally
liable to the Company or its stockholders for monetary damages resulting from
breaches of their fiduciary duty as directors except (a) for any breach of the
duty of loyalty to the Company or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the DGCL, which makes directors
liable for unlawful dividends or unlawful stock repurchases or redemptions or
(d) for transactions from which directors derive improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Description
4.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (Registration
No. 33-98608)).
4.2 Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1997, filed with the
Commission on August 8, 1997).
II-2
<PAGE> 5
4.3 Warrant issued to Joe A. Rose, dated May 19, 1999.
4.4 Warrant issued to Ronald Zazworsky, dated May 19, 1999.
4.5 Warrant issued to Timothy J. Barker, dated May 19, 1999.
4.6 Warrant issued to Margot T. Lebenberg, dated May 19, 1999.
4.7 Warrant issued to Gary Patton, dated May 19, 1999.
4.8 Warrant issued to David Lowenstein, dated May 19, 1999.
4.9 Warrant issued to Thomas C. Walker, dated May 19, 1999.
4.10 Warrant issued to Ed H. Bowman, Jr., dated May 19, 1999.
4.11 Special Warrant issued to Joe A. Rose, dated May 19, 1999.
4.12 Special Warrant issued to Timothy J. Barker, dated May 19,
1999.
5 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit
5).
24 Powers of Attorney (included on signature pages hereof).
II-3
<PAGE> 6
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) of the Securities Act if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Dallas, State of Texas, on September 17, 1999.
F.Y.I. INCORPORATED
BY: /s/ ED H. BOWMAN, JR.
-------------------------------------
ED H. BOWMAN, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWERS OF ATTORNEY
Each person whose signature appears below hereby authorizes, appoints and
constitutes Ed H. Bowman, Jr. and Margot T. Lebenberg and each of them singly,
his true and lawful attorneys-in-fact with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to sign and file any and all amendments to this Registration
Statement with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and he hereby ratifies
and confirms all that said attorneys-in-fact or either of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas C. Walker Chairman of the Board and September 17, 1999
- ------------------------------- Chief Development Officer
Thomas C. Walker
/s/ Ed H. Bowman, Jr. Director, President and Chief September 17, 1999
- ------------------------------- Executive Officer
Ed H. Bowman, Jr. (Principal Executive Officer)
/s/ David Lowenstein Director, Executive Vice President September 17, 1999
- ------------------------------- and Treasurer
David Lowenstein
/s/ Timothy J. Barker Senior Vice President and September 17, 1999
- ------------------------------- Chief Financial Officer
Timothy J. Barker (Principal Financial and
Accounting Officer)
/s/ Donald F. Moorehead, Jr. Director September 17, 1999
- -------------------------------
Donald F. Moorehead, Jr.
</TABLE>
II-5
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ G. Michael Bellenghi Director September 17, 1999
- -------------------------------
G. Michael Bellenghi
/s/ Gregory R. Melanson Director September 17, 1999
- -------------------------------
Gregory R. Melanson
/s/ Jonathan B. Shaw Director September 17, 1999
- -------------------------------
Jonathan B. Shaw
/s/ Michael J. Bradley Director September 17, 1999
- -------------------------------
Michael J. Bradley
/s/ Hon. Edward M. Rowell Director September 17, 1999
- -------------------------------
Hon. Edward M. Rowell
</TABLE>
II-6
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Registration No. 33-98608)).
4.2 Amended and Restated By-Laws of the Company (incorporated by reference
to Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997, filed with the Commission on August 8,
1997).
4.3 Warrant issued to Joe A. Rose, dated May 19, 1999.
4.4 Warrant issued to Ronald Zazworsky, dated May 19, 1999.
4.5 Warrant issued to Timothy J. Barker, dated May 19, 1999.
4.6 Warrant issued to Margot T. Lebenberg, dated May 19, 1999.
4.7 Warrant issued to Gary Patton, dated May 19, 1999.
4.8 Warrant issued to David Lowenstein, dated May 19, 1999.
4.9 Warrant issued to Thomas C. Walker, dated May 19, 1999.
4.10 Warrant issued to Ed H. Bowman, Jr., dated May 19, 1999.
4.11 Special Warrant issued to Joe A. Rose, dated May 19, 1999.
4.12 Special Warrant issued to Timothy J. Barker, dated May 19, 1999.
5 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5).
24 Powers of Attorney (included on signature pages hereof).
</TABLE>
<PAGE> 1
EXHIBIT 4.3
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. 17
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 Joe A. Rose 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"), Nineteen Thousand Three Hundred (19,300) 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.
<PAGE> 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 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
2
<PAGE> 3
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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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
3
<PAGE> 4
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, Mr. Rose 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.
4
<PAGE> 5
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.
5
<PAGE> 6
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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<PAGE> 7
(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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<PAGE> 8
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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<PAGE> 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
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Ed H. Bowman, Jr.
(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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<PAGE> 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.
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<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
--------------------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: May 19, 1999
11
<PAGE> 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 _________________________
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<PAGE> 1
EXHIBIT 4.4
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED, AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MAY 19, 2009
****************************************
No. 16
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 Ronald Zazworsky
or permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $26.75 per share (the
"Exercise Price"), Fifteen Thousand Seven Hundred (15,700) shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), subject
to the provisions and upon the terms and conditions herein set forth. The
Exercise Price and the number of Warrant Shares are subject to adjustment from
time to time as provided in Section 5.
<PAGE> 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 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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<PAGE> 3
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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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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<PAGE> 4
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, Mr. Zazworsky 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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<PAGE> 5
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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<PAGE> 6
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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<PAGE> 7
(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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<PAGE> 8
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.
8
<PAGE> 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
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Ed H. Bowman, Jr.
(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
<PAGE> 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
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
-------------------------------------
Name: Ed H. Bowman, Jr.
Title: President and Chief Executive
Officer
Dated: May 19, 1999
11
<PAGE> 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
<PAGE> 1
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
****************************************
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 Timothy J.
Barker 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.
<PAGE> 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 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
2
<PAGE> 3
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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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
3
<PAGE> 4
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, Mr. Barker 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.
4
<PAGE> 5
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.
5
<PAGE> 6
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
6
<PAGE> 7
(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.
7
<PAGE> 8
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.
8
<PAGE> 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
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Ed H. Bowman, Jr.
(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
<PAGE> 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
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
-------------------------------
Name: Ed H. Bowman, Jr.
Title: President and Chief
Executive Officer
Dated: May 19, 1999
11
<PAGE> 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
<PAGE> 1
EXHIBIT 4.6
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. 18
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 Margot T.
Lebenberg 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"), Thirteen Thousand Two Hundred (13,200)
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.
<PAGE> 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 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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<PAGE> 3
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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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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<PAGE> 4
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, Ms. Lebenberg 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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<PAGE> 5
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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<PAGE> 6
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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<PAGE> 7
(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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<PAGE> 8
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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<PAGE> 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
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Ed H. Bowman, Jr.
(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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<PAGE> 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.
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<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
------------------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: May 19, 1999
11
<PAGE> 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
----------------- -------------------------
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<PAGE> 1
EXHIBIT 4.7
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. 19
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 Gary
Patton 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"), Five Thousand (5,000) 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.
<PAGE> 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 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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<PAGE> 3
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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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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<PAGE> 4
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, Mr. Patton 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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<PAGE> 5
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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<PAGE> 6
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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<PAGE> 7
(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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<PAGE> 8
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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<PAGE> 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
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Ed H. Bowman, Jr.
(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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<PAGE> 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.
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<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
-----------------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: May 19, 1999
11
<PAGE> 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
<PAGE> 1
EXHIBIT 4.8
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. 20
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 David
Lowenstein 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"), Twenty Thousand (20,000) 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.
<PAGE> 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 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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<PAGE> 3
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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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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<PAGE> 4
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, Mr. Lowenstein 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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<PAGE> 5
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.
5
<PAGE> 6
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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<PAGE> 7
(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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<PAGE> 8
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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<PAGE> 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
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Ed H. Bowman, Jr.
(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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<PAGE> 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.
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<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
-------------------------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: May 19, 1999
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<PAGE> 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
<PAGE> 1
EXHIBIT 4.9
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. 21
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 Thomas C.
Walker 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"), Twenty Two Thousand (22,000) 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.
<PAGE> 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 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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<PAGE> 3
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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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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<PAGE> 4
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, Mr. Walker 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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<PAGE> 5
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.
5
<PAGE> 6
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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<PAGE> 7
(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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<PAGE> 8
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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<PAGE> 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
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Ed H. Bowman, Jr.
(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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<PAGE> 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
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
--------------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: May 19, 1999
11
<PAGE> 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
<PAGE> 1
EXHIBIT 4.10
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. 22
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 Ed H.
Bowman, Jr. 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"), Sixty Five Thousand (65,000) 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.
<PAGE> 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 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
2
<PAGE> 3
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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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
3
<PAGE> 4
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, Mr. Bowman 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.
4
<PAGE> 5
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.
5
<PAGE> 6
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
6
<PAGE> 7
(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.
7
<PAGE> 8
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.
8
<PAGE> 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
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Thomas C. Walker
(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
<PAGE> 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
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Thomas C. Walker
-----------------------------------
Name: Thomas C. Walker
Title: Chairman and
Chief Development Officer
Dated: May 19, 1999
11
<PAGE> 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
<PAGE> 1
EXHIBIT 4.11
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. 24
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 Joe A.
Rose 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"), Twenty Thousand (20,000) 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.
<PAGE> 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
<PAGE> 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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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
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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, Mr. Rose 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 Mr. Rose's
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 Mr. Rose's death, this Warrant may be exercised by Mr. Rose's 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 the Company on any Business Day, without charge to any
Warrantholder, except as provided
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<PAGE> 5
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
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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,
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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
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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.
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:
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(a) if to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Ed H. Bowman, Jr.
(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.
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/ Ed H. Bowman, Jr.
-------------------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: May 19, 1999
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<PAGE> 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
--------------------- ----------------------------
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<PAGE> 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 Timothy
J. Barker 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.
<PAGE> 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
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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
3232 McKinney Avenue, Suite 900, Dallas, Texas 75204 (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
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<PAGE> 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, Mr. Barker 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 Mr.
Barker's 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 Mr. Barker's death, this Warrant may be exercised by Mr. Barker's
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
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<PAGE> 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
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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,
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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
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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
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Ed H. Bowman, Jr.
(b) if to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person appearing on the books of the
Company.
Except as otherwise provided herein, all such demands,
requests, notices and other communications shall be deemed to have been received
on the date of personal delivery thereof or on the third Business Day after the
mailing thereof.
7.7 Separability. Any term or provision of this Warrant which
is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 Fractional Shares. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any exercise
hereof, the Company shall pay to the Warrantholder an amount in cash equal to
such fraction multiplied by the current market price (as determined as of the
date of exercise, and with reference to the applicable trading market, in
accordance with paragraph (d) of Section 5.1) of a share of such stock as of the
date of such exercise.
7.9 Rights of the Holder. The Warrantholder shall not, solely
by virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 Governing Law. This Warrant shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts made and performed in Delaware.
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7.11 Effect of Stock Splits, etc. Whenever any rights under
this Agreement are available only when at least a specified minimum number of
Warrant Shares is involved, such number shall be appropriately adjusted to
reflect any stock split, stock dividend, combination of securities into a
smaller number of securities or reclassification of stock.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
-----------------------------
Name: Ed H. Bowman, Jr.
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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EXHIBIT 5
September 17, 1999
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to F.Y.I. Incorporated, a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), of a Registration Statement on Form S-8 (the
"Registration Statement") relating to the registration by the Company of 206,300
shares (the "Shares") of the Company's Common Stock, $.01 par value per share,
to be issued pursuant to warrants granted to employees of the Company (the
"Warrants").
In so acting, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of (a) the Amended and Restated
Certificate of Incorporation of the Company, (b) the Amended and Restated
By-Laws of the Company, (c) a good standing certificate dated as of a recent
date from the State of Delaware, (d) the Warrants and (e) such other documents,
records, certificates and other instruments of the Company as in our judgment
are necessary or appropriate for purposes of this opinion.
Based on the foregoing, we are of the following opinion:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
2. The Shares, when issued in accordance with the terms of the Warrants
and for consideration not less than par value per Share, will be duly
authorized, validly issued, fully paid and non-assessable.
We are expressing the opinions above as members of the Bar of the State
of New York and express no opinion as to any law other than the General
Corporation Law of the State of Delaware.
<PAGE> 2
F.Y.I. Incorporated
September 17, 1999
Page 2
We consent to the use of this opinion as an exhibit to the Registration
Statement. In giving such opinion, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Christopher T. Jensen
Morgan, Lewis & Bockius LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
February 18, 1999, included in F.Y.I. Incorporated's Annual Report on Form 10-K
for the year ended December 31, 1998, and to all references to our Firm included
in this Registration Statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
September 17, 1999
