<PAGE>
As filed with the Securities and Exchange Commission on April 25, 2000
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
DALLAS, TEXAS 75204
(214) 953-7555
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
COPIES TO:
CHRISTOPHER T. JENSEN, ESQ. MARGOT T. LEBENBERG, ESQ.
MORGAN, LEWIS & BOCKIUS LLP F.Y.I. INCORPORATED
101 PARK AVENUE 3232 MCKINNEY AVENUE, SUITE 900
NEW YORK, NEW YORK 10178 DALLAS, TEXAS 75205
(212) 309-6000 (214) 953-7555
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PRICE PER SHARE OFFERING PRICE REGISTRATION FEE (3)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share.
10,000 $29.25(2) $ 292,500 $ 77.22
60,000 $30.125(2) $1,807,500 $ 477.18
291,087 $26.375(2) $7,677,420 $2,026.84
------- ---------
TOTALS 361,087 $2,581.24
====================================================================================================================================
</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.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended (the "Securities Act"), as follows: proposed maximum offering price per
share multiplied by .000264.
<PAGE>
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 of the Securities Act, and the Introductory Note to Part
I of Form S-8.
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by us with the Securities and
Exchange Commission (the "SEC") are incorporated herein by reference:
(a) Our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed with the SEC on March 23, 2000.
(b) The description of our Common Stock, par value $0.01 per
share, contained in our Registration Statement on Form 8-A (File No. 0-27444),
filed with the SEC on December 22, 1995, including any amendments or reports
filed for the purpose of updating any such description.
All reports and other documents subsequently filed by us pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (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, will 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, will 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Amended and Restated Bylaws provide that we will, 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 our 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
II-1
<PAGE>
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 our Amended and Restated Certificate of Incorporation
provides that our directors will not be personally liable to us or our
stockholders for monetary damages resulting from breaches of their fiduciary
duty as directors except for any breach of the duty of loyalty to us or our
stockholders, for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, under Section 174 of the
DGCL, which makes directors liable for unlawful dividends or unlawful stock
repurchases or redemptions, or for transactions from which directors derive
improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of F.Y.I.
Incorporated (incorporated by reference to Exhibit 3.1 to our
Registration Statement on Form S-1 (Registration No. 33-98608)
effective January 12, 1996).
4.2 First Amendment to Amended and Restated By-Laws of F.Y.I.
Incorporated (incorporated by reference to Exhibit 3.2 to our
Quarterly Report on Form 10-Q for the quarter ended June 30,
1997, filed with the SEC on August 8, 1997).
4.3 Warrant No. 25 issued to Jeffrey T. Pelcher, dated January 12, 2000.
4.4 Warrant No. 26 issued to Barrie Robertson, dated February 25,
2000.
4.5 Warrant No. 27 issued to Barrie Robertson, dated February 25,
2000.
4.6 Warrant No. 28 issued to James Helm, dated February 25, 2000.
4.7 Warrant No. 29 issued to James Helm, dated February 25, 2000.
4.8 Warrant No. 30 issued to Margot T. Lebenberg, dated March 16,
2000.
4.9 Warrant No. 31 issued to Ronald Zazworsky, dated March 16, 2000.
4.10 Warrant No. 32 issued to Timothy J. Barker, dated March 16,
2000.
4.11 Warrant No. 33 issued to Joe A. Rose, dated March 16, 2000.
4.12 Warrant No. 34 issued to Joy Karns, dated February 25, 2000.
4.13 Warrant No. 35 issued to Marvin Karns, dated February 25,
2000.
4.14 Warrant No. 36 issued to Suzette Esteban, dated February 25,
2000.
II-2
<PAGE>
<S> <C>
4.15 Warrant No. 37 issued to Francis Esteban, dated February 25,
2000.
4.16 Warrant No. 38 issued to Ruben Luna, dated February 25,2000.
4.17 Warrant No. 39 issued to Maria Olvera, dated February 25,
2000.
4.18 Warrant No. 40 issued to C. Stuart Haworth, dated March 16, 2000.
4.19 Warrant No. 41 issued to David Byerley, dated March 16, 2000.
4.20 Warrant No. 42 issued to Jonathan Shaw, dated March 16,
2000.
4.21 Warrant No. 43 issued to Phillip L. Hodgkins, dated March 16,
2000.
4.22 Warrant No. 44 issued to David Delgado, dated March 16, 2000.
4.23 Warrant No. 45 issued to Gene Marzano, dated March 16, 2000.
4.24 Warrant No. 46 issued to Joan G. Haworth, dated March 16, 2000.
4.25 Warrant No. 47 issued to Charles T. Haworth, dated March 16,
2000.
4.26 Warrant No. 48 issued to David Delgado, dated March 16, 2000.
4.27 Warrant No. 49 issued to Joan G. Haworth, dated March 16, 2000.
4.28 Warrant No. 50 issued to Charles T. Haworth, dated March 16,
2000.
4.29 Warrant No. 51 issued to Michael Wickman, dated March 16, 2000.
4.30 Warrant No. 52 issued to David Delgado, dated March 16, 2000.
4.31 Warrant No. 53 issued to Leo Cooper, dated March 16, 2000.
4.32 Warrant No. 54 issued to C. Stuart Haworth, dated March 16, 2000.
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>
II-3
<PAGE>
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) 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 SEC 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 the 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 us 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) We hereby undertake that, for purposes of determining any
liability under the Securities Act, each filing of our 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 the 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 our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the SEC 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 us 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, we 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 Exchange Act and will be governed by
the final adjudication of such issue.
II-4
<PAGE>
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 April 25, 2000.
F.Y.I. INCORPORATED
BY: /s/ ED H. BOWMAN, JR.
----------------------------------------
NAME: ED H. BOWMAN, JR.
TITLE: 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 report 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman of the Board and Chief April 25, 2000
Thomas C. Walker Development Officer
Director, President and Chief Executive April 25, 2000
Ed H. Bowman, Jr. Officer (Principal Executive Officer)
Director and Founder April 25, 2000
David Lowerstein
Director, Executive Vice President and Chief April 25, 2000
Joe A. Rose Operating Officer
Executive Vice President and Chief Financial April 25, 2000
Officer (Principal Financial and Accounting
Timothy J. Barker Officer)
II-5
<PAGE>
Director April 25, 2000
G. Michael Bellenghi
Director April 25, 2000
Michael J. Bradley
Director April 25, 2000
Gregory R. Melanson
Director April 25, 2000
Donald F. Moorehead, Jr.
Director April 25, 2000
Hon. Edward M. Rowell
Director April 25, 2000
Jonathan B. Shaw
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of
F.Y.I. Incorporated (incorporated by reference to Exhibit
3.1 to our Registration Statement on Form S-1
(Registration No. 33-98608) effective January 12, 1996).
4.2 First Amendment to Amended and Restated By-Laws of F.Y.I.
Incorporated (incorporated by reference to Exhibit 3.2 to
our Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997, filed with the SEC on August 8, 1997).
4.3 Warrant No. 25 issued to Jeffrey T. Pelcher, dated January 12,
2000.
4.4 Warrant No. 26 issued to Barrie Robertson, dated February
25, 2000.
4.5 Warrant No. 27 issued to Barrie Robertson, dated February
25, 2000.
4.6 Warrant No. 28 issued to James Helm, dated February 25,
2000.
4.7 Warrant No. 29 issued to James Helm, dated February 25,
2000.
4.8 Warrant No. 30 issued to Margot T. Lebenberg, dated March
16, 2000.
4.9 Warrant No. 31 issued to Ronald Zazworsky, dated March 16,
2000.
4.10 Warrant No. 32 issued to Timothy J. Barker, dated March
16, 2000.
4.11 Warrant No. 33 issued to Joe A. Rose, dated March 16,
2000.
4.12 Warrant No. 34 issued to Joy Karns, dated February 25,
2000.
4.13 Warrant No. 35 issued to Marvin Karns, dated February 25,
2000.
4.14 Warrant No. 36 issued to Suzette Esteban, dated February
25, 2000.
4.15 Warrant No. 37 issued to Francis Esteban, dated February
25, 2000.
4.16 Warrant No. 38 issued to Ruben Luna, dated February 25,
2000.
4.17 Warrant No. 39 issued to Maria Olvera, dated February 25,
2000.
4.18 Warrant No. 40 issued to C. Stuart Haworth, dated March 16,
2000.
4.19 Warrant No. 41 issued to David Byerley, dated March 16,
2000.
4.20 Warrant No. 42 issued to Jonathan Shaw, dated March 16,
2000.
4.21 Warrant No. 43 issued to Phillip L. Hodgkins, dated March
16, 2000.
4.22 Warrant No. 44 issued to David Delgado, dated March 16,
2000.
II-7
<PAGE>
<S> <C>
4.23 Warrant No. 45 issued to Gene Marzano, dated March 16,
2000.
4.24 Warrant No. 46 issued to Joan G. Haworth, dated March 16,
2000.
4.25 Warrant No. 47 issued to Charles T. Haworth, dated March 16,
2000.
4.26 Warrant No. 48 issued to David Delgado, dated March 16,
2000.
4.27 Warrant No. 49 issued to Joan G. Haworth, dated March 16,
2000.
4.28 Warrant No. 50 issued to Charles T. Haworth, dated March 16,
2000.
4.29 Warrant No. 51 issued to Michael Wickman, dated March 16,
2000.
4.30 Warrant No. 52 issued to David Delgado, dated March 16,
2000.
4.31 Warrant No. 53 issued to Leo Cooper, dated March 16,
2000.
4.32 Warrant No. 54 issued to C. Stuart Haworth, dated March 16,
2000.
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>
II-8
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, JANUARY 12, 2010.
****************************************
Number 25
WARRANT
to
PURCHASE COMMON STOCK
of
F.Y.I. INCORPORATED
****************************************
This certifies that, for good and valuable consideration, F.Y.I.
Incorporated, a Delaware corporation (the "Company"), grants to JEFFREY T.
PELCHER or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$29.25 per share (the "Exercise Price"), 10,000 shares of the Company's Common
Stock, par value $0.01 per share (the "Common Stock"), subject to the provisions
and upon the terms and conditions herein set forth. The Exercise Price and the
number of Warrant Shares are subject to adjustment from time to time as provided
in subsection 1.10.
1
<PAGE>
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE; PAYMENT OF
TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 20% of the
underlying shares from and after 9:00 A.M. New York City time on January
12, 2001 (the "First Exercise Date"); (ii) 20% of the underlying shares on
January 12, 2002 (the "Second Exercise Date"); (iii) 20% of the underlying
shares on January 12, 2003 (the "Third Exercise Date"); (iv) 20% of the
underlying shares on January 12, 2004 (the "Fourth Exercise Date"); and (v)
20% of the underlying shares on January 12, 2005 (the "Fifth Exercise
Date") to and including 5:00 P.M. New York City time on January 12, 2010
(the "Expiration Date"). Each of the First Exercise Date, the Second
Exercise Date, the Third Exercise Date, the Fourth Exercise Date and the
Fifth Exercise Date are hereinafter referred to from time to time, as
applicable, as the "Exercise Date" and collectively from time to time as
the "Exercise Dates")." In addition, in the event of a Change in Control of
the Company, the right to exercise 100% of the underlying shares shall
immediately vest. A "Change in Control" shall be deemed to have occurred
if:
(i) Any person, other than the Company or an employee benefit
plan of the Company, acquires directly or indirectly the Beneficial
Ownership (as defined in Section 13(d) of the Securities and Exchange
Act of 1934, as amended (the" Exchange Act")) of any voting security
of the Company and immediately after such acquisition such Person is,
directly or indirectly, the Beneficial Owner of voting securities
representing 50% or more of the total voting power of all of the
then-outstanding voting securities of the Company;
(ii) The individuals (A) who, as of the closing date of the
Initial Public Offering, constitute the Board (the "Original
Directors") or (B) who thereafter are elected to the Board and whose
election, or nomination for election, to the Board was approved by a
vote of at least two-thirds (2/3) of the Original Directors then still
in office (such directors becoming "Additional Original Directors"
immediately following their election) or (C) who are elected to the
Board and whose election, or nomination for election, to the Board was
approved by a vote of at least two-thirds (2/3) of the Original
Directors and Additional Original Directors then still in office (such
directors also becoming "Additional Original Directors" immediately
following their election) (such individuals being the "Continuing
Directors"), cease for any reason to constitute a majority of the
members of the Board;
2
<PAGE>
(iii) The stockholders of the Company shall approve a merger,
consolidation, recapitalization, or reorganization of the Company, a
reverse stock split of outstanding voting securities, or consummation
of any such transaction if stockholder approval is not sought or
obtained, other than any such transaction which would result in at
least 75% of the total voting power represented by the voting
securities of the surviving entity outstanding immediately after such
transaction being Beneficially Owned by at least 75% of the holders of
outstanding voting securities of the Company immediately prior to the
transaction, with the voting power of each such continuing holder
relative to other such continuing holders not substantially altered in
the transaction; or
(iv) The stockholders of the Company shall approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or a substantial portion of the
Company's assets (I.E., 50% or more of the total assets of the
Company).
(b) The rights represented by this Warrant may be exercised by the
Warrantholder of record, in whole, or from time to time in part, by:
(i) Surrender of this Warrant, accompanied by either the Exercise
Form annexed hereto, or if the Warrantholder decides to exercise the
Warrant pursuant to the broker-assisted cashless exercise program
instituted by the Company, an applicable exercise form provided by the
Company (the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be purchased, to
the Company at the office of the Company located at 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. on
the Expiration Date (or 5:00 P.M. on the next succeeding Business Day,
if the Expiration Date is a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash or by certified
or official bank check in New York Clearing House Funds, of the
Exercise Price for the number of Warrant Shares specified in the
Exercise Form (such payment may be made by the Warrantholder directly
or by a designated broker pursuant to the broker-assisted cashless
exercise program instituted by the Company, subject to subsection 1.5
herein) and
(iii) Such documentation as to the identity and authority of the
Warrantholder as the Company may reasonably request.
3
<PAGE>
Such Warrant Shares shall be deemed by the Company to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close
of business on the date on which this Warrant shall have been surrendered
and payment made for the Warrant Shares as aforesaid. Certificates for the
Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder (or designated broker, as the case may be) as promptly as
practicable, and in any event within 10 business days, thereafter. The
stock certificates so delivered shall be in denominations of at least one
thousand (1,000) shares each or such other denomination as may be specified
by the Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the
certificates for the Warrant Shares, deliver to the Warrantholder (or
designated broker, as the case may be) a new Warrant evidencing the rights
to purchase the remaining Warrant Shares, which new Warrant shall in all
other respects be identical with this Warrant. No adjustments or payments
shall be made on or in respect of Warrant Shares issuable on the exercise
of this Warrant for any cash dividends paid or payable to holders of record
of Common Stock prior to the date as of which the Warrantholder shall be
deemed to be the record holder of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior to 5:00
P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Jeffrey T. Pelcher's
employment with the Company for good reason or without cause, this Warrant may
be exercised to the extent it has vested as of such date and to and including
the Expiration Date. Upon termination of Jeffrey T. Pelcher's employment with
the Company by Mr. Pelcher without good reason or by the Company with cause,
even if this Warrant has vested as of such date, this Warrant shall cease to be
exercisable and shall become void and all rights of the Warrantholder hereunder
shall cease. If Jeffrey T. Pelcher's employment is terminated prior to the
vesting of this Warrant, this Warrant shall cease to be exercisable and shall
become void and all rights of the Warrantholder hereunder shall cease. Subject
to the foregoing, in the event of Jeffrey T. Pelcher's death, this Warrant may
be exercised by Jeffrey T. Pelcher'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
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<PAGE>
certificates for Warrant Shares in a name other than that of the then
Warrantholder as reflected upon the books of the Company.
1.5 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing, neither this
Warrant nor any of the Warrant Shares, nor any interest or participation in
either, may be in any manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws.
(b) Each certificate for Warrant Shares and any Warrant issued at any
time in exchange or substitution for any Warrant bearing such a legend
shall bear a legend similar in effect to the foregoing paragraph unless, in
the opinion of counsel for the Company, the Warrant and the Warrant Shares
need no longer be subject to the restriction contained herein. The
provisions of this subsection 1.5 shall be binding upon all subsequent
holders of this Warrant and the Warrant Shares, if any. Warrant Shares
transferred to the public as expressly permitted by, and in accordance
with, the provisions of this Warrant shall thereafter cease to be deemed to
be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into warrants
representing one Warrant Share or multiples thereof, upon surrender at the
principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares which are
issued upon the exercise of the rights represented by this Warrant shall, upon
issuance and payment of the Exercise Price, be validly issued, fully paid and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof other than taxes in respect
of any transfer occurring contemporaneously with such issue. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved, and keep available free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant, and shall at its expense use its best efforts to procure such listing
thereof (subject to official notice of issuance) as then may be required on all
stock exchanges on which the Common Stock is then listed or on the Nasdaq
National Market. The Company shall, from time to time, take all such action as
may be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
5
<PAGE>
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by subsections
1.5 or 1.6 and in accordance with the provisions thereof, upon surrender of this
Warrant to the Company with a duly executed instrument of assignment and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant of like tenor in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term "Warrant" as used herein includes any Warrants issued in substitution
or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant Shares may be
purchased hereunder, and the number of Warrant Shares to be purchased upon
exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by reclassification
of its shares of Common Stock other securities of the Company (including
any such reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of Warrant
Shares purchasable upon exercise of this Warrant shall be adjusted so that
the Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would have owned
or have been entitled to receive after the happening of any of the events
described above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all holders of its
outstanding Common Stock, without any charge to such holders,
entitling them to subscribe
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<PAGE>
for or purchase shares of Common Stock at a price per share which is
lower at the record date for the determination of stockholders
entitled to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of Common Stock
evidences of its indebtedness or assets (excluding cash dividends or
distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in paragraph (a) of this
subsection 1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock, appropriate adjustments shall be made
to the number of Warrant Shares purchasable upon the exercise of the
Warrant and/or the Exercise Price in order to preserve the relative
rights and interests of the Warrantholders, such adjustments to be
made by the good faith determination of the Board of Directors of the
Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option, at
any time during the term of the Warrants, reduce the then current Exercise Price
to any amount, consistent with applicable law, deemed appropriate by the Board
of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of any cash
dividends shall be made during the term of this Warrant or upon the exercise of
this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In case
of any consolidation of the Company with or merger of the Company into another
corporation or in case of any sale, transfer or lease to another corporation of
all or substantially all of the property of the Company, the Company or such
successor or purchasing corporation, as the case may be, shall execute with the
Warrantholders an agreement that the Warrantholders shall have the right
thereafter upon payment of the Exercise Price in effect immediately prior to
such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; PROVIDED, HOWEVER, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
7
<PAGE>
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the Company shall
file a registration statement covering the Warrant Shares on a Form S-8, which
registration statement shall be effective upon the filing thereof. The Company
shall use its best efforts to keep such Form S-8 current and effective until the
earlier of the Expiration Date or the date this Warrant has been exercised in
full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company, the Warrantholder and holders of Warrant
Shares and their respective heirs, legal representatives, successors and
assigns. Nothing in this Warrant, expressed or implied, is intended to or shall
confer on any person other than the Company, the Warrantholders and holders of
Warrant Shares, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended
except by an instrument in writing signed by the Company and Warrantholders that
hold Warrants entitling them to purchase at least 50% of the Warrant Shares. The
Company, any Warrantholder or holders of Warrant Shares may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
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<PAGE>
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders and holders
of Warrant Shares shall do and perform all such further acts and things and
execute and deliver all such other certificates, instruments and/or documents
(including without limitation, such proxies and/or powers of attorney as may be
necessary or appropriate) as any party hereto may, at any time and from time to
time, reasonably request in connection with the performance of any of the
provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other communications
required or permitted to be given under this Warrant shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
United States certified or registered first class mail, postage prepaid, to the
parties hereto at the following addresses or at such other address as any party
hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares, addressed to
the address of such person then appearing on the books of the Company.
Except as otherwise provided herein, all such demands, requests, notices
and other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable any other term or provision of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by virtue of
this Warrant, be entitled to any rights of a stockholder of the Company, either
at law or in equity.
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<PAGE>
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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<PAGE>
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: January 12, 2000
11
<PAGE>
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>
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, FEBRUARY 25, 2010.
****************************************
Number 26
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 BARRIE ROBERTSON
or permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $30.125 per share (the
"Exercise Price"), Seventeen Thousand Two Hundred Eighty (17,280) shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), subject
to the provisions and upon the terms and conditions herein set forth. The
Exercise Price and the number of Warrant Shares are subject to adjustment from
time to time as provided in subsection 1.10.
1. Duration and Exercise of Warrant; Limitation on Exercise; Payment of
Taxes.
1.1 Duration and Exercise of Warrant.
(a) This Warrant may be exercised to purchase (i) 20% of the
underlying shares from and after 9:00 A.M. New York City time on February
25, 2001 (the "First Exercise Date"); (ii) 20% of the underlying shares on
February 25, 2002 (the "Second Exercise Date"); (iii) 20% of the underlying
shares on February 25, 2003 (the "Third Exercise Date"); (iv) 20% of the
underlying shares on February 25, 2004 (the "Fourth Exercise Date"); and
(v) 20% of the underlying shares on February 25, 2005 (the "Fifth Exercise
Date") to and including 5:00 P.M. New York City time on February 25, 2010
<PAGE>
(the "Expiration Date"). Each of the First Exercise Date, the Second
Exercise Date, the Third Exercise Date, the Fourth Exercise Date and the
Fifth Exercise Date are hereinafter referred to from time to time, as
applicable, as the "Exercise Date" and collectively from time to time as
the "Exercise Date."
(b) The rights represented by this Warrant may be exercised by the
Warrantholder of record, in whole, or from time to time in part, by:
(i) Surrender of this Warrant, accompanied by either the Exercise
Form annexed hereto, or if the Warrantholder decides to exercise the
Warrant pursuant to the broker-assisted cashless exercise program
instituted by the Company, an applicable exercise form provided by the
Company (the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be purchased, to
the Company at the office of the Company located at 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. on
the Expiration Date (or 5:00 P.M. on the next succeeding Business Day,
if the Expiration Date is a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash or by certified
or official bank check in New York Clearing House Funds, of the
Exercise Price for the number of Warrant Shares specified in the
Exercise Form (such payment may be made by the Warrantholder directly
or by a designated broker pursuant to the broker-assisted cashless
exercise program instituted by the Company, subject to subsection 1.5
herein) and
(iii) Such documentation as to the identity and authority of the
Warrantholder as the Company may reasonably request.
Such Warrant Shares shall be deemed by the Company to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close
of business on the date on which this Warrant shall have been surrendered
and payment made for the Warrant Shares as aforesaid. Certificates for the
Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder (or designated broker, as the case may be) as promptly as
practicable, and in any event within 10 business days, thereafter. The
stock certificates so delivered shall be in denominations of at least one
thousand (1,000) shares each or such other denomination as may be specified
by the Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if
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<PAGE>
permitted by subsection 1.5 and in accordance with the provisions thereof,
such other name as shall be designated in the Exercise Form. If this
Warrant shall have been exercised only in part, the Company shall, at the
time of delivery of the certificates for the Warrant Shares, deliver to the
Warrantholder (or designated broker, as the case may be) a new Warrant
evidencing the rights to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant Shares
issuable on the exercise of this Warrant for any cash dividends paid or
payable to holders of record of Common Stock prior to the date as of which
the Warrantholder shall be deemed to be the record holder of such Warrant
Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior to 5:00
P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Barrie Robertson's
employment with the Company or Mailing & Marketing Acquisition Corp. (the
"Subsidiary") other than for good cause, this Warrant may be exercised to the
extent it has vested as of such date and for three (3) months thereafter and up
to and including the Expiration Date. Upon termination of Barrie Robertson's
employment by the Company or the Subsidiary for good cause, even if this Warrant
has vested as of such date, this Warrant shall cease to be exercisable and shall
become void and all rights of the Warrantholder hereunder shall cease as of such
termination. If Barrie Robertson's employment is terminated for any reason prior
to the vesting of this Warrant, this Warrant shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall cease.
Subject to the foregoing, in the event of Barrie Robertson's death, this Warrant
may be exercised by Mr. Robertson'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing, neither this
Warrant nor any of the Warrant Shares, nor any interest or participation in
either, may be in any manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws.
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<PAGE>
(b) Each certificate for Warrant Shares and any Warrant issued at any
time in exchange or substitution for any Warrant bearing such a legend
shall bear a legend similar in effect to the foregoing paragraph unless, in
the opinion of counsel for the Company, the Warrant and the Warrant Shares
need no longer be subject to the restriction contained herein. The
provisions of this subsection 1.5 shall be binding upon all subsequent
holders of this Warrant and the Warrant Shares, if any. Warrant Shares
transferred to the public as expressly permitted by, and in accordance
with, the provisions of this Warrant shall thereafter cease to be deemed to
be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into warrants
representing one Warrant Share or multiples thereof, upon surrender at the
principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares which are
issued upon the exercise of the rights represented by this Warrant shall, upon
issuance and payment of the Exercise Price, be validly issued, fully paid and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof other than taxes in respect
of any transfer occurring contemporaneously with such issue. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved, and keep available free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant, and shall at its expense use its best efforts to procure such listing
thereof (subject to official notice of issuance) as then may be required on all
stock exchanges on which the Common Stock is then listed or on the Nasdaq
National Market. The Company shall, from time to time, take all such action as
may be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by subsections
1.5 or 1.6 and in accordance with the provisions thereof, upon surrender of this
Warrant to the Company with a duly executed instrument of assignment and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant of like tenor in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term "Warrant" as used herein includes any Warrants issued in substitution
or exchange of this Warrant.
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<PAGE>
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant Shares may be
purchased hereunder, and the number of Warrant Shares to be purchased upon
exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by reclassification
of its shares of Common Stock other securities of the Company (including
any such reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of Warrant
Shares purchasable upon exercise of this Warrant shall be adjusted so that
the Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would have owned
or have been entitled to receive after the happening of any of the events
described above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all holders of its
outstanding Common Stock, without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at
a price per share which is lower at the record date for the
determination of stockholders entitled to receive such rights, options
or warrants than the then current market price per share of Common
Stock, or
(ii) Distribute to all holders of its shares of Common Stock
evidences of its indebtedness or assets (excluding cash dividends or
distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in paragraph (a) of this
subsection 1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock, appropriate adjustments shall be made
to the number of Warrant Shares purchasable upon the exercise of the
Warrant and/or the Exercise Price in order to preserve the relative
rights and interests of the
5
<PAGE>
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option, at
any time during the term of the Warrants, reduce the then current Exercise Price
to any amount, consistent with applicable law, deemed appropriate by the Board
of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of any cash
dividends shall be made during the term of this Warrant or upon the exercise of
this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In case
of any consolidation of the Company with or merger of the Company into another
corporation or in case of any sale, transfer or lease to another corporation of
all or substantially all of the property of the Company, the Company or such
successor or purchasing corporation, as the case may be, shall execute with the
Warrantholders an agreement that the Warrantholders shall have the right
thereafter upon this Warrant becoming exercisable in accordance with subsection
1.1(a) and payment of the Exercise Price in effect immediately prior to such
action to purchase upon exercise of this Warrant the kind and amount of shares
and other securities and property which such holder would have owned or have
been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the Company shall
file a registration statement covering the Warrant Shares on a Form S-8, which
registration statement shall be effective upon the filing thereof. The Company
shall use its best efforts to keep such Form S-8 current and effective until the
earlier of the Expiration Date or the date this Warrant has been exercised in
full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
6
<PAGE>
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company, the Warrantholder and holders of Warrant
Shares and their respective heirs, legal representatives, successors and
assigns. Nothing in this Warrant, expressed or implied, is intended to or shall
confer on any person other than the Company, the Warrantholders and holders of
Warrant Shares, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended
except by an instrument in writing signed by the Company and Warrantholders that
hold Warrants entitling them to purchase at least 50% of the Warrant Shares. The
Company, any Warrantholder or holders of Warrant Shares may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg , Esq.
(b) If to any Warrantholder or holder of Warrant Shares, addressed to
the address of such person then appearing on the books of the Company.
Except as otherwise provided herein, all such demands, requests, notices
and other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable any other term or provision of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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.
8
<PAGE>
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: February 25, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
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, FEBRUARY 25, 2010.
****************************************
Number 27
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 BARRIE ROBERTSON
or permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $30.125 per share (the
"Exercise Price"), Six Thousand Seven Hundred Twenty (6,720) shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), subject
to the provisions and upon the terms and conditions herein set forth. The
Exercise Price and the number of Warrant Shares are subject to adjustment from
time to time as provided in subsection 1.10.
1. Duration and Exercise of Warrant; Limitation on Exercise; Payment of
Taxes.
1.1 Duration and Exercise of Warrant.
(a) This Warrant may be exercised to purchase (i) 50% of the
underlying shares from and after 9:00 A.M. New York City time on February
25, 2001 (the "First Exercise Date"); and (ii) 50% of the underlying shares
on February 25, 2002 (the "Second Exercise Date") to and including 5:00
P.M. New York City time on February 25, 2010 (the "Expiration Date"). Each
of the First Exercise Date and the Second Exercise Date are hereinafter
referred to from time to time, as applicable, as an "Exercise Date."
<PAGE>
(b) The rights represented by this Warrant may be exercised by the
Warrantholder of record, in whole, or from time to time in part, by:
(i) Surrender of this Warrant, accompanied by either the Exercise
Form annexed hereto, or if the Warrantholder decides to exercise the
Warrant pursuant to the broker-assisted cashless exercise program
instituted by the Company, an applicable exercise form provided by the
Company (the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be purchased, to
the Company at the office of the Company located at 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. on
the Expiration Date (or 5:00 P.M. on the next succeeding Business Day,
if the Expiration Date is a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash or by certified
or official bank check in New York Clearing House Funds, of the
Exercise Price for the number of Warrant Shares specified in the
Exercise Form (such payment may be made by the Warrantholder directly
or by a designated broker pursuant to the broker-assisted cashless
exercise program instituted by the Company, subject to subsection 1.5
herein) and
(iii) Such documentation as to the identity and authority of the
Warrantholder as the Company may reasonably request.
Such Warrant Shares shall be deemed by the Company to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close
of business on the date on which this Warrant shall have been surrendered
and payment made for the Warrant Shares as aforesaid. Certificates for the
Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder (or designated broker, as the case may be) as promptly as
practicable, and in any event within 10 business days, thereafter. The
stock certificates so delivered shall be in denominations of at least one
thousand (1,000) shares each or such other denomination as may be specified
by the Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the
certificates for the Warrant Shares, deliver to the Warrantholder (or
designated broker, as the case may be) a new Warrant evidencing the rights
to purchase the remaining Warrant Shares,
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<PAGE>
which new Warrant shall in all other respects be identical with this
Warrant. No adjustments or payments shall be made on or in respect of
Warrant Shares issuable on the exercise of this Warrant for any cash
dividends paid or payable to holders of record of Common Stock prior to the
date as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior to 5:00
P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Barrie Robertson's
employment with the Company or Mailing & Marketing Acquisition Corp. (the
"Subsidiary") other than for good cause, this Warrant may be exercised to the
extent it has vested as of such date and for three (3) months thereafter and up
to and including the Expiration Date. Upon termination of Barrie Robertson's
employment by the Company or the Subsidiary for good cause, even if this Warrant
has vested as of such date, this Warrant shall cease to be exercisable and shall
become void and all rights of the Warrantholder hereunder shall cease as of such
termination. If Barrie Robertson's employment is terminated for any reason prior
to the vesting of this Warrant, this Warrant shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall cease.
Subject to the foregoing, in the event of Barrie Robertson's death, this Warrant
may be exercised by Mr. Robertson'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing, neither this
Warrant nor any of the Warrant Shares, nor any interest or participation in
either, may be in any manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws.
(b) Each certificate for Warrant Shares and any Warrant issued at any
time in exchange or substitution for any Warrant bearing such a legend
shall bear a legend similar in effect to the foregoing paragraph unless, in
the opinion of counsel for the Company, the Warrant and the Warrant Shares
need no longer be subject to the restriction contained herein. The
provisions of this subsection 1.5 shall be binding upon all subsequent
holders of this Warrant and the Warrant Shares, if any. Warrant Shares
3
<PAGE>
transferred to the public as expressly permitted by, and in accordance
with, the provisions of this Warrant shall thereafter cease to be deemed to
be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into warrants
representing one Warrant Share or multiples thereof, upon surrender at the
principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares which are
issued upon the exercise of the rights represented by this Warrant shall, upon
issuance and payment of the Exercise Price, be validly issued, fully paid and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof other than taxes in respect
of any transfer occurring contemporaneously with such issue. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved, and keep available free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant, and shall at its expense use its best efforts to procure such listing
thereof (subject to official notice of issuance) as then may be required on all
stock exchanges on which the Common Stock is then listed or on the Nasdaq
National Market. The Company shall, from time to time, take all such action as
may be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by subsections
1.5 or 1.6 and in accordance with the provisions thereof, upon surrender of this
Warrant to the Company with a duly executed instrument of assignment and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant of like tenor in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term "Warrant" as used herein includes any Warrants issued in substitution
or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
4
<PAGE>
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant Shares may be
purchased hereunder, and the number of Warrant Shares to be purchased upon
exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by reclassification
of its shares of Common Stock other securities of the Company (including
any such reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of Warrant
Shares purchasable upon exercise of this Warrant shall be adjusted so that
the Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would have owned
or have been entitled to receive after the happening of any of the events
described above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all holders of its
outstanding Common Stock, without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at
a price per share which is lower at the record date for the
determination of stockholders entitled to receive such rights, options
or warrants than the then current market price per share of Common
Stock, or
(ii) Distribute to all holders of its shares of Common Stock
evidences of its indebtedness or assets (excluding cash dividends or
distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in paragraph (a) of this
subsection 1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock, appropriate adjustments shall be made
to the number of Warrant Shares purchasable upon the exercise of the
Warrant and/or the Exercise Price in order to preserve the relative
rights and interests of the Warrantholders, such adjustments to be
made by the good faith determination of the Board of Directors of the
Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option, at
any time during the term of the Warrants, reduce the then current Exercise Price
to any amount, consistent with applicable law, deemed appropriate by the Board
of Directors of the Company.
5
<PAGE>
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of any cash
dividends shall be made during the term of this Warrant or upon the exercise of
this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In case
of any consolidation of the Company with or merger of the Company into another
corporation or in case of any sale, transfer or lease to another corporation of
all or substantially all of the property of the Company, the Company or such
successor or purchasing corporation, as the case may be, shall execute with the
Warrantholders an agreement that the Warrantholders shall have the right
thereafter upon this Warrant becoming exercisable in accordance with subsection
1.1(a) and payment of the Exercise Price in effect immediately prior to such
action to purchase upon exercise of this Warrant the kind and amount of shares
and other securities and property which such holder would have owned or have
been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the Company shall
file a registration statement covering the Warrant Shares on a Form S-8, which
registration statement shall be effective upon the filing thereof. The Company
shall use its best efforts to keep such Form S-8 current and effective until the
earlier of the Expiration Date or the date this Warrant has been exercised in
full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
6
<PAGE>
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company, the Warrantholder and holders of Warrant
Shares and their respective heirs, legal representatives, successors and
assigns. Nothing in this Warrant, expressed or implied, is intended to or shall
confer on any person other than the Company, the Warrantholders and holders of
Warrant Shares, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended
except by an instrument in writing signed by the Company and Warrantholders that
hold Warrants entitling them to purchase at least 50% of the Warrant Shares. The
Company, any Warrantholder or holders of Warrant Shares may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders and holders
of Warrant Shares shall do and perform all such further acts and things and
execute and deliver all such other certificates, instruments and/or documents
(including without limitation, such proxies and/or powers of attorney as may be
necessary or appropriate) as any party hereto may, at any time and from time to
time, reasonably request in connection with the performance of any of the
provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other communications
required or permitted to be given under this Warrant shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
United States certified or registered first class mail, postage prepaid, to the
parties hereto at the following addresses or at such other address as any party
hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg , Esq.
(b) If to any Warrantholder or holder of Warrant Shares, addressed to
the address of such person then appearing on the books of the Company.
7
<PAGE>
Except as otherwise provided herein, all such demands, requests, notices
and other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable any other term or provision of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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.
8
<PAGE>
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: February 25, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
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, FEBRUARY 25, 2010.
****************************************
Number 28
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 JAMES HELM or
permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $30.125 per share (the
"Exercise Price"), Seventeen Thousand Two Hundred Eighty (17,280) shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), subject
to the provisions and upon the terms and conditions herein set forth. The
Exercise Price and the number of Warrant Shares are subject to adjustment from
time to time as provided in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE; PAYMENT
OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 20% of the
underlying shares from and after 9:00 A.M. New York City time on
February 25, 2001 (the "First Exercise Date"); (ii) 20% of the
underlying shares on February 25, 2002 (the "Second Exercise Date");
(iii) 20% of the underlying shares on February 25, 2003 (the "Third
Exercise Date"); (iv) 20% of the underlying shares on February 25,
2004 (the "Fourth Exercise Date"); and (v) 20% of the underlying
shares on February 25, 2005 (the "Fifth
<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on
February 25, 2010 (the "Expiration Date"). Each of the First Exercise
Date, the Second Exercise Date, the Third Exercise Date, the Fourth
Exercise Date and the Fifth Exercise Date are hereinafter referred to
from time to time, as applicable, as the "Exercise Date" and
collectively from time to time as the "Exercise Date."
(b) The rights represented by this Warrant may be exercised by
the Warrantholder of record, in whole, or from time to time in part,
by:
(i) Surrender of this Warrant, accompanied by either the
Exercise Form annexed hereto, or if the Warrantholder decides to
exercise the Warrant pursuant to the broker-assisted cashless
exercise program instituted by the Company, an applicable
exercise form provided by the Company (the "Exercise Form") duly
executed by the Warrantholder of record and specifying the number
of Warrant Shares to be purchased, to the Company at the office
of the Company located at 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. on the Expiration Date (or 5:00 P.M. on
the next succeeding Business Day, if the Expiration Date is a
Nonbusiness Day),
(ii) Delivery of payment to the Company in cash or by
certified or official bank check in New York Clearing House
Funds, of the Exercise Price for the number of Warrant Shares
specified in the Exercise Form (such payment may be made by the
Warrantholder directly or by a designated broker pursuant to the
broker-assisted cashless exercise program instituted by the
Company, subject to subsection 1.5 herein) and
(iii) Such documentation as to the identity and authority of
the Warrantholder as the Company may reasonably request.
Such Warrant Shares shall be deemed by the Company to be issued
to the Warrantholder as the record holder of such Warrant Shares as of
the close of business on the date on which this Warrant shall have
been surrendered and payment made for the Warrant Shares as aforesaid.
Certificates for the Warrant Shares specified in the Exercise Form
shall be delivered to the Warrantholder (or designated broker, as the
case may be) as promptly as practicable, and in any event within 10
business days, thereafter. The stock certificates so delivered shall
be in denominations of at least one thousand (1,000) shares each or
such other denomination as may be specified by the Warrantholder and
agreed upon by the Company, and shall be issued in the name of the
Warrantholder or, if permitted by subsection 1.5 and in accordance
with the provisions thereof, such other name as shall be designated in
the Exercise Form. If this Warrant shall have been
2
<PAGE>
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing
the rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior to 5:00
P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of James Helm's employment
with the Company or Mailing & Marketing Acquisition Corp. (the "Subsidiary")
other than for good cause, this Warrant may be exercised to the extent it has
vested as of such date and for three (3) months thereafter and up to and
including the Expiration Date. Upon termination of James Helm's employment by
the Company or the Subsidiary for good cause, even if this Warrant has vested as
of such date, this Warrant shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease as of such
termination. If James Helm's employment is terminated for any reason prior to
the vesting of this Warrant, this Warrant shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall cease.
Subject to the foregoing, in the event of James Helm's death, this Warrant may
be exercised by Mr. Helm'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing, neither this
Warrant nor any of the Warrant Shares, nor any interest or participation in
either, may be in any manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws.
(b) Each certificate for Warrant Shares and any Warrant issued at any
time in exchange or substitution for any Warrant bearing such a legend
shall bear a legend similar in effect to the foregoing paragraph unless, in
the opinion of counsel for the
3
<PAGE>
Company, the Warrant and the Warrant Shares need no longer be subject to
the restriction contained herein. The provisions of this subsection 1.5
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into warrants
representing one Warrant Share or multiples thereof, upon surrender at the
principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares which are
issued upon the exercise of the rights represented by this Warrant shall, upon
issuance and payment of the Exercise Price, be validly issued, fully paid and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof other than taxes in respect
of any transfer occurring contemporaneously with such issue. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved, and keep available free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant, and shall at its expense use its best efforts to procure such listing
thereof (subject to official notice of issuance) as then may be required on all
stock exchanges on which the Common Stock is then listed or on the Nasdaq
National Market. The Company shall, from time to time, take all such action as
may be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by subsections
1.5 or 1.6 and in accordance with the provisions thereof, upon surrender of this
Warrant to the Company with a duly executed instrument of assignment and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant of like tenor in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term "Warrant" as used herein includes any Warrants issued in substitution
or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall
4
<PAGE>
not be affected by any notice to the contrary, until presentation of this
Warrant for registration of transfer as provided in subsections 1.1 and 1.5 or
in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant Shares may be
purchased hereunder, and the number of Warrant Shares to be purchased upon
exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by reclassification
of its shares of Common Stock other securities of the Company (including
any such reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of Warrant
Shares purchasable upon exercise of this Warrant shall be adjusted so that
the Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would have owned
or have been entitled to receive after the happening of any of the events
described above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all holders of its
outstanding Common Stock, without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at
a price per share which is lower at the record date for the
determination of stockholders entitled to receive such rights, options
or warrants than the then current market price per share of Common
Stock, or
(ii) Distribute to all holders of its shares of Common Stock
evidences of its indebtedness or assets (excluding cash dividends or
distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in paragraph (a) of this
subsection 1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock, appropriate adjustments shall be made
to the number of Warrant Shares purchasable upon the exercise of the
Warrant and/or the Exercise Price in order to preserve the relative
rights and interests of the Warrantholders, such adjustments to be
made by the good faith determination of the Board of Directors of the
Company.
5
<PAGE>
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option, at
any time during the term of the Warrants, reduce the then current Exercise Price
to any amount, consistent with applicable law, deemed appropriate by the Board
of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of any cash
dividends shall be made during the term of this Warrant or upon the exercise of
this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In case
of any consolidation of the Company with or merger of the Company into another
corporation or in case of any sale, transfer or lease to another corporation of
all or substantially all of the property of the Company, the Company or such
successor or purchasing corporation, as the case may be, shall execute with the
Warrantholders an agreement that the Warrantholders shall have the right
thereafter upon this Warrant becoming exercisable in accordance with subsection
1.1(a) and payment of the Exercise Price in effect immediately prior to such
action to purchase upon exercise of this Warrant the kind and amount of shares
and other securities and property which such holder would have owned or have
been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the Company shall
file a registration statement covering the Warrant Shares on a Form S-8, which
registration statement shall be effective upon the filing thereof. The Company
shall use its best efforts to keep such Form S-8 current and effective until the
earlier of the Expiration Date or the date this Warrant has been exercised in
full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
6
<PAGE>
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company, the Warrantholder and holders of Warrant
Shares and their respective heirs, legal representatives, successors and
assigns. Nothing in this Warrant, expressed or implied, is intended to or shall
confer on any person other than the Company, the Warrantholders and holders of
Warrant Shares, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended
except by an instrument in writing signed by the Company and Warrantholders that
hold Warrants entitling them to purchase at least 50% of the Warrant Shares. The
Company, any Warrantholder or holders of Warrant Shares may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg, Esq.
(b) If to any Warrantholder or holder of Warrant Shares, addressed to
the address of such person then appearing on the books of the Company.
Except as otherwise provided herein, all such demands, requests, notices
and other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable any other term or provision of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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.
8
<PAGE>
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: February 25, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
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, FEBRUARY 25, 2010.
****************************************
Number 29
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 JAMES HELM or
permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $30.125 per share (the
"Exercise Price"), Six Thousand Seven Hundred Twenty (6,720) shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), subject
to the provisions and upon the terms and conditions herein set forth. The
Exercise Price and the number of Warrant Shares are subject to adjustment from
time to time as provided in subsection 1.10.
1. Duration and Exercise of Warrant; Limitation on Exercise; Payment of
Taxes.
1.1 Duration and Exercise of Warrant.
(a) This Warrant may be exercised to purchase (i) 50% of the
underlying shares from and after 9:00 A.M. New York City time on February
25, 2001 (the "First Exercise Date"); and (ii) 50% of the underlying shares
on February 25, 2002 (the "Second Exercise Date") to and including 5:00
P.M. New York City time on February 25, 2010 (the "Expiration Date"). Each
of the First Exercise Date and the Second Exercise Date are hereinafter
referred to from time to time, as applicable, as an "Exercise Date."
<PAGE>
(b) The rights represented by this Warrant may be exercised by the
Warrantholder of record, in whole, or from time to time in part, by:
(i) Surrender of this Warrant, accompanied by either the Exercise
Form annexed hereto, or if the Warrantholder decides to exercise the
Warrant pursuant to the broker-assisted cashless exercise program
instituted by the Company, an applicable exercise form provided by the
Company (the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be purchased, to
the Company at the office of the Company located at 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. on
the Expiration Date (or 5:00 P.M. on the next succeeding Business Day,
if the Expiration Date is a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash or by certified
or official bank check in New York Clearing House Funds, of the
Exercise Price for the number of Warrant Shares specified in the
Exercise Form (such payment may be made by the Warrantholder directly
or by a designated broker pursuant to the broker-assisted cashless
exercise program instituted by the Company, subject to subsection 1.5
herein) and
(iii) Such documentation as to the identity and authority of the
Warrantholder as the Company may reasonably request.
Such Warrant Shares shall be deemed by the Company to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close
of business on the date on which this Warrant shall have been surrendered
and payment made for the Warrant Shares as aforesaid. Certificates for the
Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder (or designated broker, as the case may be) as promptly as
practicable, and in any event within 10 business days, thereafter. The
stock certificates so delivered shall be in denominations of at least one
thousand (1,000) shares each or such other denomination as may be specified
by the Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the
certificates for the Warrant Shares, deliver to the Warrantholder (or
designated broker, as the case may be) a new Warrant evidencing the rights
to purchase the remaining Warrant Shares,
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<PAGE>
which new Warrant shall in all other respects be identical with this
Warrant. No adjustments or payments shall be made on or in respect of
Warrant Shares issuable on the exercise of this Warrant for any cash
dividends paid or payable to holders of record of Common Stock prior to the
date as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior to 5:00
P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of James Helm's employment
with the Company or Mailing & Marketing Acquisition Corp. (the "Subsidiary")
other than for good cause, this Warrant may be exercised to the extent it has
vested as of such date and for three (3) months thereafter and up to and
including the Expiration Date. Upon termination of James Helm's employment by
the Company or the Subsidiary for good cause, even if this Warrant has vested as
of such date, this Warrant shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease as of such
termination. If James Helm's employment is terminated for any reason prior to
the vesting of this Warrant, this Warrant shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall cease.
Subject to the foregoing, in the event of James Helm's death, this Warrant may
be exercised by Mr. Helm'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing, neither this
Warrant nor any of the Warrant Shares, nor any interest or participation in
either, may be in any manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws.
(b) Each certificate for Warrant Shares and any Warrant issued at any
time in exchange or substitution for any Warrant bearing such a legend
shall bear a legend similar in effect to the foregoing paragraph unless, in
the opinion of counsel for the Company, the Warrant and the Warrant Shares
need no longer be subject to the restriction contained herein. The
provisions of this subsection 1.5 shall be binding upon all subsequent
holders of this Warrant and the Warrant Shares, if any. Warrant Shares
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transferred to the public as expressly permitted by, and in accordance
with, the provisions of this Warrant shall thereafter cease to be deemed to
be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into warrants
representing one Warrant Share or multiples thereof, upon surrender at the
principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares which are
issued upon the exercise of the rights represented by this Warrant shall, upon
issuance and payment of the Exercise Price, be validly issued, fully paid and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof other than taxes in respect
of any transfer occurring contemporaneously with such issue. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved, and keep available free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant, and shall at its expense use its best efforts to procure such listing
thereof (subject to official notice of issuance) as then may be required on all
stock exchanges on which the Common Stock is then listed or on the Nasdaq
National Market. The Company shall, from time to time, take all such action as
may be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by subsections
1.5 or 1.6 and in accordance with the provisions thereof, upon surrender of this
Warrant to the Company with a duly executed instrument of assignment and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant of like tenor in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term "Warrant" as used herein includes any Warrants issued in substitution
or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
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1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant Shares may be
purchased hereunder, and the number of Warrant Shares to be purchased upon
exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by reclassification
of its shares of Common Stock other securities of the Company (including
any such reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of Warrant
Shares purchasable upon exercise of this Warrant shall be adjusted so that
the Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would have owned
or have been entitled to receive after the happening of any of the events
described above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all holders of its
outstanding Common Stock, without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at
a price per share which is lower at the record date for the
determination of stockholders entitled to receive such rights, options
or warrants than the then current market price per share of Common
Stock, or
(ii) Distribute to all holders of its shares of Common Stock
evidences of its indebtedness or assets (excluding cash dividends or
distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in paragraph (a) of this
subsection 1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock, appropriate adjustments shall be made
to the number of Warrant Shares purchasable upon the exercise of the
Warrant and/or the Exercise Price in order to preserve the relative
rights and interests of the Warrantholders, such adjustments to be
made by the good faith determination of the Board of Directors of the
Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option, at
any time during the term of the Warrants, reduce the then current Exercise Price
to any amount, consistent with applicable law, deemed appropriate by the Board
of Directors of the Company.
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3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of any cash
dividends shall be made during the term of this Warrant or upon the exercise of
this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In case
of any consolidation of the Company with or merger of the Company into another
corporation or in case of any sale, transfer or lease to another corporation of
all or substantially all of the property of the Company, the Company or such
successor or purchasing corporation, as the case may be, shall execute with the
Warrantholders an agreement that the Warrantholders shall have the right
thereafter upon this Warrant becoming exercisable in accordance with subsection
1.1(a) and payment of the Exercise Price in effect immediately prior to such
action to purchase upon exercise of this Warrant the kind and amount of shares
and other securities and property which such holder would have owned or have
been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the Company shall
file a registration statement covering the Warrant Shares on a Form S-8, which
registration statement shall be effective upon the filing thereof. The Company
shall use its best efforts to keep such Form S-8 current and effective until the
earlier of the Expiration Date or the date this Warrant has been exercised in
full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
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7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company, the Warrantholder and holders of Warrant
Shares and their respective heirs, legal representatives, successors and
assigns. Nothing in this Warrant, expressed or implied, is intended to or shall
confer on any person other than the Company, the Warrantholders and holders of
Warrant Shares, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended
except by an instrument in writing signed by the Company and Warrantholders that
hold Warrants entitling them to purchase at least 50% of the Warrant Shares. The
Company, any Warrantholder or holders of Warrant Shares may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders and holders
of Warrant Shares shall do and perform all such further acts and things and
execute and deliver all such other certificates, instruments and/or documents
(including without limitation, such proxies and/or powers of attorney as may be
necessary or appropriate) as any party hereto may, at any time and from time to
time, reasonably request in connection with the performance of any of the
provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other communications
required or permitted to be given under this Warrant shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
United States certified or registered first class mail, postage prepaid, to the
parties hereto at the following addresses or at such other address as any party
hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg , Esq.
(b) If to any Warrantholder or holder of Warrant Shares, addressed to
the address of such person then appearing on the books of the Company.
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Except as otherwise provided herein, all such demands, requests, notices
and other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable any other term or provision of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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: February 25, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby irrevocably
elects to exercise the right, represented by this Warrant, to purchase
__________ of the Warrant Shares and herewith tenders payment for such Warrant
Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is ____________________________________.
Date _________________ Signature _________________________
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 30
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
$26.375 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 subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT. (a) Subject to subsection
1.3, this Warrant may be exercised to purchase (i) 33 1/3% of the underlying
shares from and after 9:00 A.M. New York City time on March 16, 2001 (the
"First Exercise Date"); (ii) 33 1/3% of the underlying shares on March 16,
2002 (the "Second Exercise Date"); and the remaining (iii) 33 1/3% of the
underlying shares on March 16, 2003 (the "Third Exercise Date") to and
including 5:00 P.M. New York City time on March 16, 2010 (the "Expiration
Date"). Each of the First Exercise
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Date, the Second Exercise Date and the Third Exercise Date are hereinafter
referred to from time to time, as applicable, as the "Exercise Date" and
collectively from time to time as the "Exercise Dates")."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for
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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) In the event of Margot T. Lebenberg's death prior to
the Expiration Date, this Warrant may be exercised to the extent then
exercisable by Ms. Lebenberg's legal representative through the
Expiration Date.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. Subject to subsection
1.3, this Warrant shall not be exercisable, and no Warrant Shares shall be
issued hereunder, prior to 9:00 A.M. New York City time on the First Exercise
Date.
1.3 EXERCISE UPON CHANGE OF CONTROL. In the event of a Change in
Control (as defined below), this Warrant shall immediately vest in its entirety
with respect to the Warrantholder's right to purchase all of the shares
underlying the Warrant and may be exercised in whole or in part from time to
time through and including the Expiration Date. A "Change in Control" shall be
deemed to have occurred if:
(i) Any person, other than the Company or an
employee benefit plan of the Company, acquires directly or
indirectly the Beneficial Ownership (as defined in Section
13(d) of the Securities and Exchange Act of 1934, as amended)
of any voting security of the Company and immediately after
such acquisition such person is, directly or indirectly, the
Beneficial Owner of voting securities representing 50% or more
of the total voting power of all of the then-outstanding
voting securities of the Company;
(ii) The individuals (A) who, as of the closing
date of the Company's initial public offering, constitute the
Board of Directors of the Company (the "Original Directors")
or (B) who thereafter are elected to the Board and whose
election, or nomination for election, to the Board was
approved by a vote of at least two-thirds (2/3) of the
Original Directors then still in office (such directors
becoming "Additional Original Directors" immediately following
their election) or (C) who are elected to the Board and whose
election, or nomination for election, to the Board was
approved by a vote of at least two-thirds (2/3) of the
Original Directors and Additional Original Directors then
still in office (such directors also becoming "Additional
Original Directors" immediately following their election)
(such individuals being the "Continuing Directors"), cease for
any reason to constitute a majority of the members of the
Board;
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(iii) The stockholders of the Company shall
approve a merger, consolidation, recapitalization or
reorganization of the Company, a reverse stock split of
outstanding voting securities, or consummation of any such
transaction if stockholder approval is not sought or obtained,
other than any such transaction which would result in at least
75% of the total voting power represented by the voting
securities of the surviving entity outstanding immediately
after such transaction being Beneficially Owned by at least
75% of the holders of outstanding voting securities of the
Company immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such
continuing holders not substantially altered in the
transaction; or
(iv) The stockholders of the Company shall
approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
a substantial portion of the Company's assets (I.E., 50% or
more of the total assets of the Company).
1.4 PAYMENT OF TAXES. The issuance of certificates for Warrant
Shares shall be made without charge to the Warrantholder for any stock transfer
or other issuance tax in respect thereto; PROVIDED, HOWEVER, that the
Warrantholder shall be required to pay any and all taxes which may be payable in
respect to any transfer involved in the issuance and delivery of any
certificates for Warrant Shares in a name other than that of the then
Warrantholder as reflected upon the books of the Company.
1.5 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed of, in
whole or in part, except in compliance with applicable United States federal and
state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing such a
legend shall bear a legend similar in effect to the foregoing paragraph unless,
in the opinion of counsel for the Company, the Warrant and the Warrant Shares
need no longer be subject to the restriction contained herein. The provisions of
this subsection 1.5 shall be binding upon all subsequent holders of this Warrant
and the Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this Warrant
shall thereafter cease to be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in
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<PAGE>
connection with the division of this Warrant into Warrants representing fewer
than one thousand (1,000) Warrant Shares. Upon any such division, and, if
permitted by subsection 1.5(b) and in accordance with the provisions thereof,
the Warrants may be transferred of record to a name other than that of the
Warrantholder of record; PROVIDED, HOWEVER, that the Warrantholder shall be
required to pay any and all transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
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<PAGE>
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common
Stock (ii) subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares
of Common Stock or (iv) issue by reclassification of its shares of
Common Stock other securities of the Company (including any such
reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of
Warrant Shares purchasable upon exercise of this Warrant shall be
adjusted so that the Warrantholder shall be entitled to receive the
kind and number of Warrant Shares or other securities of the Company
which he would have owned or have been entitled to receive after the
happening of any of the events described above, had this Warrant
been exercised immediately prior to the happening of such event or
any record date with respect thereto. An adjustment made pursuant to
this paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any,
for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
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5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than March 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
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,
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successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such
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invalidity or unenforceability without rendering invalid or unenforceable any
other term or provision of this Warrant or affecting the validity or
enforceability of any of the terms or provisions of this Warrant in any other
jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number of Warrant
Shares is involved, such number shall be appropriately adjusted to reflect any
stock split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
-----------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby
irrevocably elects to exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares and herewith tenders payment for such
Warrant Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is
_____________________________________.
Date _________________ Signature _________________________
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 31
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
$26.375 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 subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT. (a) Subject to subsection
1.3, this Warrant may be exercised to purchase (i) 33 1/3% of the underlying
shares from and after 9:00 A.M. New York City time on March 16, 2001 (the
"First Exercise Date"); (ii) 33 1/3% of the underlying shares on March 16,
2002 (the "Second Exercise Date"); and the remaining (iii) 33 1/3% of the
underlying shares on March 16, 2003 (the "Third Exercise Date") to and
including 5:00 P.M. New York City time on March 16, 2010 (the "Expiration
Date"). Each of the First Exercise
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Date, the Second Exercise Date and the Third Exercise Date are hereinafter
referred to from time to time, as applicable, as the "Exercise Date" and
collectively from time to time as the "Exercise Dates")."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for
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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) In the event of Ronald Zazworsky's death prior to the
Expiration Date, this Warrant may be exercised to the extent then
exercisable by Mr. Zazworsky's legal representative through the
Expiration Date.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. Subject to subsection
1.3, this Warrant shall not be exercisable, and no Warrant Shares shall be
issued hereunder, prior to 9:00 A.M. New York City time on the First Exercise
Date.
1.3 EXERCISE UPON CHANGE OF CONTROL. In the event of a Change in
Control (as defined below), this Warrant shall immediately vest in its entirety
with respect to the Warrantholder's right to purchase all of the shares
underlying the Warrant and may be exercised in whole or in part from time to
time through and including the Expiration Date. A "Change in Control" shall be
deemed to have occurred if:
(i) Any person, other than the Company or an
employee benefit plan of the Company, acquires directly or
indirectly the Beneficial Ownership (as defined in Section
13(d) of the Securities and Exchange Act of 1934, as amended)
of any voting security of the Company and immediately after
such acquisition such person is, directly or indirectly, the
Beneficial Owner of voting securities representing 50% or more
of the total voting power of all of the then-outstanding
voting securities of the Company;
(ii) The individuals (A) who, as of the closing
date of the Company's initial public offering, constitute the
Board of Directors of the Company (the "Original Directors")
or (B) who thereafter are elected to the Board and whose
election, or nomination for election, to the Board was
approved by a vote of at least two-thirds (2/3) of the
Original Directors then still in office (such directors
becoming "Additional Original Directors" immediately following
their election) or (C) who are elected to the Board and whose
election, or nomination for election, to the Board was
approved by a vote of at least two-thirds (2/3) of the
Original Directors and Additional Original Directors then
still in office (such directors also becoming "Additional
Original Directors" immediately following their election)
(such individuals being the "Continuing Directors"), cease for
any reason to constitute a majority of the members of the
Board;
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<PAGE>
(iii) The stockholders of the Company shall
approve a merger, consolidation, recapitalization or
reorganization of the Company, a reverse stock split of
outstanding voting securities, or consummation of any such
transaction if stockholder approval is not sought or obtained,
other than any such transaction which would result in at least
75% of the total voting power represented by the voting
securities of the surviving entity outstanding immediately
after such transaction being Beneficially Owned by at least
75% of the holders of outstanding voting securities of the
Company immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such
continuing holders not substantially altered in the
transaction; or
(iv) The stockholders of the Company shall
approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
a substantial portion of the Company's assets (I.E., 50% or
more of the total assets of the Company).
1.4 PAYMENT OF TAXES. The issuance of certificates for Warrant
Shares shall be made without charge to the Warrantholder for any stock transfer
or other issuance tax in respect thereto; PROVIDED, HOWEVER, that the
Warrantholder shall be required to pay any and all taxes which may be payable in
respect to any transfer involved in the issuance and delivery of any
certificates for Warrant Shares in a name other than that of the then
Warrantholder as reflected upon the books of the Company.
1.5 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in
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<PAGE>
connection with the division of this Warrant into Warrants representing fewer
than one thousand (1,000) Warrant Shares. Upon any such division, and, if
permitted by subsection 1.5(b) and in accordance with the provisions thereof,
the Warrants may be transferred of record to a name other than that of the
Warrantholder of record; PROVIDED, HOWEVER, that the Warrantholder shall be
required to pay any and all transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
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<PAGE>
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common
Stock (ii) subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares
of Common Stock or (iv) issue by reclassification of its shares of
Common Stock other securities of the Company (including any such
reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of
Warrant Shares purchasable upon exercise of this Warrant shall be
adjusted so that the Warrantholder shall be entitled to receive the
kind and number of Warrant Shares or other securities of the Company
which he would have owned or have been entitled to receive after the
happening of any of the events described above, had this Warrant
been exercised immediately prior to the happening of such event or
any record date with respect thereto. An adjustment made pursuant to
this paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any,
for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
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5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than March 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
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,
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<PAGE>
successors and assigns. Nothing in this Warrant, expressed or implied, is
intended to or shall confer on any person other than the Company, the
Warrantholders and holders of Warrant Shares, or their respective heirs, legal
representatives, successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such
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<PAGE>
invalidity or unenforceability without rendering invalid or unenforceable any
other term or provision of this Warrant or affecting the validity or
enforceability of any of the terms or provisions of this Warrant in any other
jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number of Warrant
Shares is involved, such number shall be appropriately adjusted to reflect any
stock split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
9
<PAGE>
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: March 16, 2000
10
<PAGE>
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 _________________________
11
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 32
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 $26.375 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 subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) Subject to subsection 1.3, this Warrant may be exercised to purchase
(i) 33 1/3% of the underlying shares from and after 9:00 A.M. New York City
time on March 16, 2001 (the "First Exercise Date"); (ii) 33 1/3% of the
underlying shares on March 16, 2002 (the "Second Exercise Date"); and the
remaining (iii) 33 1/3% of the underlying shares on March 16, 2003 (the "Third
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<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on March 16,
2010 (the "Expiration Date"). Each of the First Exercise Date, the Second
Exercise Date and the Third Exercise Date are hereinafter referred to from
time to time, as applicable, as the "Exercise Date" and collectively from
time to time as the "Exercise Dates")."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
2
<PAGE>
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. Subject to subsection
1.3, this Warrant shall not be exercisable, and no Warrant Shares shall be
issued hereunder, prior to 9:00 A.M. New York City time on the First Exercise
Date.
1.3 EXERCISE UPON A CHANGE OF CONTROL. In the event of a Change in
Control (as defined below), this Warrant shall immediately vest in its entirety
with respect to the Warrantholder's right to purchase all of the shares
underlying the Warrant and may be exercised in whole or in part from time to
time through and including the Expiration Date. A "Change in Control" shall be
deemed to have occurred if:
(i) Any person, other than the Company or an
employee benefit plan of the Company, acquires directly or
indirectly the Beneficial Ownership (as defined in Section
13(d) of the Securities and Exchange Act of 1934, as amended
(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;
3
<PAGE>
(iii) The stockholders of the Company shall
approve a merger, consolidation, recapitalization, or
reorganization of the Company, a reverse stock split of
outstanding voting securities, or consummation of any such
transaction if stockholder approval is not sought or obtained,
other than any such transaction which would result in at least
75% of the total voting power represented by the voting
securities of the surviving entity outstanding immediately
after such transaction being Beneficially Owned by at least
75% of the holders of outstanding voting securities of the
Company immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such
continuing holders not substantially altered in the
transaction; or
(iv) The stockholders of the Company shall
approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
a substantial portion of the Company's assets (I.E., 50% or
more of the total assets of the Company).
In the event of Timothy J. Barker's death prior to the Expiration Date, this
Warrant may be exercised to the extent then exercisable 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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
4
<PAGE>
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
5
<PAGE>
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
6
<PAGE>
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than March 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7
<PAGE>
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
8
<PAGE>
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number of Warrant
Shares is involved, such number shall be appropriately adjusted to reflect any
stock split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
9
<PAGE>
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: March 16, 2000
10
<PAGE>
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 _________________________
11
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 33
WARRANT
to
PURCHASE COMMON STOCK
of
F.Y.I. INCORPORATED
****************************************
This certifies that, for good and valuable consideration, F.Y.I.
Incorporated, a Delaware corporation (the "Company"), grants to JOE A. ROSE or
permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $26.375 per share (the
"Exercise Price"), one hundred thousand (100,000) shares of the Company's Common
Stock, par value $0.01 per share (the "Common Stock"), subject to the provisions
and upon the terms and conditions herein set forth. The Exercise Price and the
number of Warrant Shares are subject to adjustment from time to time as provided
in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) Subject to subsection 1.3, this Warrant may be exercised to purchase
(i) 33 1/3% of the underlying shares from and after 9:00 A.M. New York City
time on March 16, 2001 (the "First Exercise Date"); (ii) 33 1/3% of the
underlying shares on March 16, 2002 (the "Second Exercise Date"); and the
remaining (iii) 33 1/3% of the underlying shares on March 16, 2003 (the "Third
1
<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on March 16,
2010 (the "Expiration Date"). Each of the First Exercise Date, the Second
Exercise Date and the Third Exercise Date are hereinafter referred to from
time to time, as applicable, as the "Exercise Date" and collectively from
time to time as the "Exercise Dates")."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
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exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. Subject to subsection
1.3, this Warrant shall not be exercisable, and no Warrant Shares shall be
issued hereunder, prior to 9:00 A.M. New York City time on the First Exercise
Date.
1.3 EXERCISE UPON A CHANGE OF CONTROL. In the event of a Change in
Control (as defined below), this Warrant shall immediately vest in its entirety
with respect to the Warrantholder's right to purchase all of the shares
underlying the Warrant and may be exercised in whole or in part from time to
time through and including the Expiration Date. A "Change in Control" shall be
deemed to have occurred if:
(i) Any person, other than the Company or an
employee benefit plan of the Company, acquires directly or
indirectly the Beneficial Ownership (as defined in Section
13(d) of the Securities and Exchange Act of 1934, as amended
(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;
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(iii) The stockholders of the Company shall
approve a merger, consolidation, recapitalization, or
reorganization of the Company, a reverse stock split of
outstanding voting securities, or consummation of any such
transaction if stockholder approval is not sought or obtained,
other than any such transaction which would result in at least
75% of the total voting power represented by the voting
securities of the surviving entity outstanding immediately
after such transaction being Beneficially Owned by at least
75% of the holders of outstanding voting securities of the
Company immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such
continuing holders not substantially altered in the
transaction; or
(iv) The stockholders of the Company shall
approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
a substantial portion of the Company's assets (I.E., 50% or
more of the total assets of the Company).
In the event of Joe A. Rose's death prior to the Expiration Date, this Warrant
may be exercised to the extent then exercisable 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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
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1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
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The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
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3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than March 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
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7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
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Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number of Warrant
Shares is involved, such number shall be appropriately adjusted to reflect any
stock split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
------------------------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby irrevocably
elects to exercise the right, represented by this Warrant, to purchase
__________ of the Warrant Shares and herewith tenders payment for such Warrant
Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is ____________________________________.
Date _________________ Signature _________________________
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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, FEBRUARY 25, 2010.
****************************************
Number 34
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 JOY KARNS or
permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $30.125 per share (the
"Exercise Price"), two thousand (2,000) shares of the Company's Common Stock,
par value $0.01 per share (the "Common Stock"), subject to the provisions and
upon the terms and conditions herein set forth. The Exercise Price and the
number of Warrant Shares are subject to adjustment from time to time as provided
in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 20% of
the underlying shares from and after 9:00 A.M. New York City time on
February 25, 2001 (the "First Exercise Date"); (ii) 20% of the
underlying shares on February 25, 2002 (the "Second Exercise Date");
(iii) 20% of the underlying shares on February 25, 2003 (the "Third
Exercise Date"); (iv) 20% of the underlying shares on February 25, 2004
(the "Fourth Exercise Date"); and (v) 20% of the underlying shares on
February 25, 2005 (the "Fifth
<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on
February 25, 2010 (the "Expiration Date"). Each of the First Exercise
Date, the Second Exercise Date, the Third Exercise Date, the Fourth
Exercise Date and the Fifth Exercise Date are hereinafter referred to
from time to time, as applicable, as the "Exercise Date" and
collectively from time to time as the "Exercise Date."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
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<PAGE>
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Joy Karn's
employment with the Company or Mailing & Marketing Acquisition Corp. (the
"Subsidiary") for any reason (including death or retirement), this Warrant may
be exercised to the extent it has vested as of such date and for three (3)
months thereafter and up to and including the Expiration Date. If Joy Karn's
employment is terminated for any reason prior to the vesting of this Warrant,
this Warrant shall cease to be exercisable and shall become void and all rights
of the Warrantholder hereunder shall cease. Subject to the foregoing, in the
event of Joy Karn's death, this Warrant may be exercised to the extent vested at
the time of death by Ms. Karn'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon
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<PAGE>
all subsequent holders of this Warrant and the Warrant Shares, if any.
Warrant Shares transferred to the public as expressly permitted by, and
in accordance with, the provisions of this Warrant shall thereafter
cease to be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
4
<PAGE>
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
5
<PAGE>
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon this Warrant becoming exercisable in accordance with
subsection 1.1(a) and payment of the Exercise Price in effect immediately prior
to such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
6
<PAGE>
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg, Esq.
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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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<PAGE>
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: February 25, 2000
9
<PAGE>
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>
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, FEBRUARY 25, 2010.
****************************************
Number 35
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 MARVIN
KARNS or permitted registered assigns (the "Warrantholder" or "Warrantholders"),
the right to subscribe for and purchase from the Company, at $30.125 per share
(the "Exercise Price"), two thousand (2,000) shares of the Company's Common
Stock, par value $0.01 per share (the "Common Stock"), subject to the provisions
and upon the terms and conditions herein set forth. The Exercise Price and the
number of Warrant Shares are subject to adjustment from time to time as provided
in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 20% of
the underlying shares from and after 9:00 A.M. New York City time on
February 25, 2001 (the "First Exercise Date"); (ii) 20% of the
underlying shares on February 25, 2002 (the "Second Exercise Date");
(iii) 20% of the underlying shares on February 25, 2003 (the "Third
Exercise Date"); (iv) 20% of the underlying shares on February 25, 2004
(the "Fourth Exercise Date"); and (v) 20% of the underlying shares on
February 25, 2005 (the "Fifth
<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on
February 25, 2010 (the "Expiration Date"). Each of the First Exercise
Date, the Second Exercise Date, the Third Exercise Date, the Fourth
Exercise Date and the Fifth Exercise Date are hereinafter referred to
from time to time, as applicable, as the "Exercise Date" and
collectively from time to time as the "Exercise Date."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
2
<PAGE>
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Marvin Karn's
employment with the Company or Mailing & Marketing Acquisition Corp. (the
"Subsidiary") for any reason (including death or retirement), this Warrant may
be exercised to the extent it has vested as of such date and for three (3)
months thereafter and up to and including the Expiration Date. If Marvin Karn's
employment is terminated for any reason prior to the vesting of this Warrant,
this Warrant shall cease to be exercisable and shall become void and all rights
of the Warrantholder hereunder shall cease. Subject to the foregoing, in the
event of Marvin Karn's death, this Warrant may be exercised to the extent vested
at the time of death by Mr. Karn'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon
3
<PAGE>
all subsequent holders of this Warrant and the Warrant Shares, if any.
Warrant Shares transferred to the public as expressly permitted by, and
in accordance with, the provisions of this Warrant shall thereafter
cease to be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
4
<PAGE>
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
5
<PAGE>
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon this Warrant becoming exercisable in accordance with
subsection 1.1(a) and payment of the Exercise Price in effect immediately prior
to such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
6
<PAGE>
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg, Esq.
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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.
8
<PAGE>
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: February 25, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
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, FEBRUARY 25, 2010.
****************************************
Number 36
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 SUZETTE
ESTEBAN or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$30.125 per share (the "Exercise Price"), two thousand (2,000) shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), subject
to the provisions and upon the terms and conditions herein set forth. The
Exercise Price and the number of Warrant Shares are subject to adjustment from
time to time as provided in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 20% of
the underlying shares from and after 9:00 A.M. New York City time on
February 25, 2001 (the "First Exercise Date"); (ii) 20% of the
underlying shares on February 25, 2002 (the "Second Exercise Date");
(iii) 20% of the underlying shares on February 25, 2003 (the "Third
Exercise Date"); (iv) 20% of the underlying shares on February 25, 2004
(the "Fourth Exercise Date"); and (v) 20% of the underlying shares on
February 25, 2005 (the "Fifth
<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on
February 25, 2010 (the "Expiration Date"). Each of the First Exercise
Date, the Second Exercise Date, the Third Exercise Date, the Fourth
Exercise Date and the Fifth Exercise Date are hereinafter referred to
from time to time, as applicable, as the "Exercise Date" and
collectively from time to time as the "Exercise Date."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
2
<PAGE>
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Suzette
Esteban's employment with the Company or Mailing & Marketing Acquisition Corp.
(the "Subsidiary") for any reason (including death or retirement), this Warrant
may be exercised to the extent it has vested as of such date and for three (3)
months thereafter and up to and including the Expiration Date. If Suzette
Esteban's employment is terminated for any reason prior to the vesting of this
Warrant, this Warrant shall cease to be exercisable and shall become void and
all rights of the Warrantholder hereunder shall cease. Subject to the foregoing,
in the event of Suzette Esteban's death, this Warrant may be exercised to the
extent vested at the time of death by Ms. Esteban'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon
3
<PAGE>
all subsequent holders of this Warrant and the Warrant Shares, if any.
Warrant Shares transferred to the public as expressly permitted by, and
in accordance with, the provisions of this Warrant shall thereafter
cease to be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
4
<PAGE>
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
5
<PAGE>
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon this Warrant becoming exercisable in accordance with
subsection 1.1(a) and payment of the Exercise Price in effect immediately prior
to such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
6
<PAGE>
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg, Esq.
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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.
8
<PAGE>
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: February 25, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
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, FEBRUARY 25, 2010.
****************************************
Number 37
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 FRANCIS
ESTEBAN or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$30.125 per share (the "Exercise Price"), two thousand (2,000) shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), subject
to the provisions and upon the terms and conditions herein set forth. The
Exercise Price and the number of Warrant Shares are subject to adjustment from
time to time as provided in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 20% of
the underlying shares from and after 9:00 A.M. New York City time on
February 25, 2001 (the "First Exercise Date"); (ii) 20% of the
underlying shares on February 25, 2002 (the "Second Exercise Date");
(iii) 20% of the underlying shares on February 25, 2003 (the "Third
Exercise Date"); (iv) 20% of the underlying shares on February 25,
2004 (the "Fourth Exercise Date"); and (v) 20% of the underlying
shares on February 25, 2005 (the "Fifth
<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on
February 25, 2010 (the "Expiration Date"). Each of the First
Exercise Date, the Second Exercise Date, the Third Exercise Date,
the Fourth Exercise Date and the Fifth Exercise Date are hereinafter
referred to from time to time, as applicable, as the "Exercise Date"
and collectively from time to time as the "Exercise Date."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
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exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Francis
Esteban's employment with the Company or Mailing & Marketing Acquisition Corp.
(the "Subsidiary") for any reason (including death or retirement), this Warrant
may be exercised to the extent it has vested as of such date and for three (3)
months thereafter and up to and including the Expiration Date. If Francis
Esteban's employment is terminated for any reason prior to the vesting of this
Warrant, this Warrant shall cease to be exercisable and shall become void and
all rights of the Warrantholder hereunder shall cease. Subject to the foregoing,
in the event of Francis Esteban's death, this Warrant may be exercised to the
extent vested at the time of death by Mr. Esteban'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon
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all subsequent holders of this Warrant and the Warrant Shares, if any.
Warrant Shares transferred to the public as expressly permitted by, and
in accordance with, the provisions of this Warrant shall thereafter
cease to be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
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<PAGE>
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common
Stock (ii) subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares
of Common Stock or (iv) issue by reclassification of its shares of
Common Stock other securities of the Company (including any such
reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of
Warrant Shares purchasable upon exercise of this Warrant shall be
adjusted so that the Warrantholder shall be entitled to receive the
kind and number of Warrant Shares or other securities of the Company
which he would have owned or have been entitled to receive after the
happening of any of the events described above, had this Warrant
been exercised immediately prior to the happening of such event or
any record date with respect thereto. An adjustment made pursuant to
this paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any,
for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
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<PAGE>
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon this Warrant becoming exercisable in accordance with
subsection 1.1(a) and payment of the Exercise Price in effect immediately prior
to such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
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7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg, Esq.
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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: February 25, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby
irrevocably elects to exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares and herewith tenders payment for such
Warrant Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is_____________________________________
_____________________________________.
Date _________________ Signature _________________________
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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, FEBRUARY 25, 2010.
****************************************
Number 38
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 RUBEN LUNA or
permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $30.125 per share (the
"Exercise Price"), two thousand (2,000) shares of the Company's Common Stock,
par value $0.01 per share (the "Common Stock"), subject to the provisions and
upon the terms and conditions herein set forth. The Exercise Price and the
number of Warrant Shares are subject to adjustment from time to time as provided
in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 20% of
the underlying shares from and after 9:00 A.M. New York City time on
February 25, 2001 (the "First Exercise Date"); (ii) 20% of the
underlying shares on February 25, 2002 (the "Second Exercise Date");
(iii) 20% of the underlying shares on February 25, 2003 (the "Third
Exercise Date"); (iv) 20% of the underlying shares on February 25, 2004
(the "Fourth Exercise Date"); and (v) 20% of the underlying shares on
February 25, 2005 (the "Fifth
<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on
February 25, 2010 (the "Expiration Date"). Each of the First Exercise
Date, the Second Exercise Date, the Third Exercise Date, the Fourth
Exercise Date and the Fifth Exercise Date are hereinafter referred to
from time to time, as applicable, as the "Exercise Date" and
collectively from time to time as the "Exercise Date."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
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exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Ruben Luna's
employment with the Company or Mailing & Marketing Acquisition Corp. (the
"Subsidiary") for any reason (including death or retirement), this Warrant may
be exercised to the extent it has vested as of such date and for three (3)
months thereafter and up to and including the Expiration Date. If Ruben Luna's
employment is terminated for any reason prior to the vesting of this Warrant,
this Warrant shall cease to be exercisable and shall become void and all rights
of the Warrantholder hereunder shall cease. Subject to the foregoing, in the
event of Ruben Luna's death, this Warrant may be exercised to the extent vested
at the time of death by Mr. Luna'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon
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all subsequent holders of this Warrant and the Warrant Shares, if any.
Warrant Shares transferred to the public as expressly permitted by, and
in accordance with, the provisions of this Warrant shall thereafter
cease to be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
4
<PAGE>
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
5
<PAGE>
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon this Warrant becoming exercisable in accordance with
subsection 1.1(a) and payment of the Exercise Price in effect immediately prior
to such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
6
<PAGE>
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg, Esq.
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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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<PAGE>
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: February 25, 2000
9
<PAGE>
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>
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, FEBRUARY 25, 2010.
****************************************
Number 39
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 MARIA OLVERA or
permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $30.125 per share (the
"Exercise Price"), two thousand (2,000) shares of the Company's Common Stock,
par value $0.01 per share (the "Common Stock"), subject to the provisions and
upon the terms and conditions herein set forth. The Exercise Price and the
number of Warrant Shares are subject to adjustment from time to time as provided
in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 20% of
the underlying shares from and after 9:00 A.M. New York City time on
February 25, 2001 (the "First Exercise Date"); (ii) 20% of the
underlying shares on February 25, 2002 (the "Second Exercise Date");
(iii) 20% of the underlying shares on February 25, 2003 (the "Third
Exercise Date"); (iv) 20% of the underlying shares on February 25, 2004
(the "Fourth Exercise Date"); and (v) 20% of the underlying shares on
February 25, 2005 (the "Fifth
<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on
February 25, 2010 (the "Expiration Date"). Each of the First Exercise
Date, the Second Exercise Date, the Third Exercise Date, the Fourth
Exercise Date and the Fifth Exercise Date are hereinafter referred to
from time to time, as applicable, as the "Exercise Date" and
collectively from time to time as the "Exercise Date."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
2
<PAGE>
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Maria Olvera's
employment with the Company or Mailing & Marketing Acquisition Corp. (the
"Subsidiary") for any reason (including death or retirement), this Warrant may
be exercised to the extent it has vested as of such date and for three (3)
months thereafter and up to and including the Expiration Date. If Maria Olvera's
employment is terminated for any reason prior to the vesting of this Warrant,
this Warrant shall cease to be exercisable and shall become void and all rights
of the Warrantholder hereunder shall cease. Subject to the foregoing, in the
event of Maria Olvera's death, this Warrant may be exercised to the extent
vested at the time of death by Ms. Olvera'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon
3
<PAGE>
all subsequent holders of this Warrant and the Warrant Shares, if any.
Warrant Shares transferred to the public as expressly permitted by, and
in accordance with, the provisions of this Warrant shall thereafter
cease to be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
4
<PAGE>
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
5
<PAGE>
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon this Warrant becoming exercisable in accordance with
subsection 1.1(a) and payment of the Exercise Price in effect immediately prior
to such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
6
<PAGE>
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg, Esq.
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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.
8
<PAGE>
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: February 25, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 40
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 C. STUART
HAWORTH or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), six thousand five hundred and fifty
(6,550) shares of the Company's Common Stock, par value $0.01 per share (the
"Common Stock"), subject to the provisions and upon the terms and conditions
herein set forth. The Exercise Price and the number of Warrant Shares are
subject to adjustment from time to time as provided in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 20% of
the underlying shares from and after 9:00 A.M. New York City time on
March 16, 2001 (the "First Exercise Date"); (ii) 20% of the underlying
shares on March 16, 2002 (the "Second Exercise Date"); (iii) 20% of the
underlying shares on March 16, 2003 (the "Third Exercise Date"); (iv)
20% of the underlying shares on March 16, 2004 (the "Fourth Exercise
Date"); and (v) 20% of the underlying shares on March 16, 2005 (the
"Fifth
<PAGE>
Exercise Date") to and including 5:00 P.M. New York City time on March
16, 2010 (the "Expiration Date"). Each of the First Exercise Date, the
Second Exercise Date, the Third Exercise Date, the Fourth Exercise Date
and the Fifth Exercise Date are hereinafter referred to from time to
time, as applicable, as the "Exercise Date" and collectively from time
to time as the "Exercise Date."
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
2
<PAGE>
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of C. Stuart
Haworth's employment with the Company or Economic Research Service, Inc. (the
"Subsidiary") for any reason (including death or retirement), this Warrant may
be exercised to the extent it has vested as of such date and for three (3)
months thereafter and up to and including the Expiration Date. If C. Stuart
Haworth's employment is terminated for any reason prior to the vesting of this
Warrant, this Warrant shall cease to be exercisable and shall become void and
all rights of the Warrantholder hereunder shall cease. Subject to the foregoing,
in the event of C. Stuart Haworth's death, this Warrant may be exercised to the
extent vested at the time of death by Mr. Haworth'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon
3
<PAGE>
all subsequent holders of this Warrant and the Warrant Shares, if any.
Warrant Shares transferred to the public as expressly permitted by, and
in accordance with, the provisions of this Warrant shall thereafter
cease to be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
provided, however, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
4
<PAGE>
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
5
<PAGE>
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon this Warrant becoming exercisable in accordance with
subsection 1.1(a) and payment of the Exercise Price in effect immediately prior
to such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; provided, however, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than February 28, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
6
<PAGE>
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Facsimile No.: (214) 953-7556
Telephone No.: (214) 953-7555
Attention: Margot T. Lebenberg, Esq.
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise) 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.
8
<PAGE>
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: March 16, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 41
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
BYERLEY or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), eleven thousand seven hundred
eighty-five (11,785) shares of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), subject to the provisions and upon the terms and
conditions herein set forth. The Exercise Price and the number of Warrant Shares
are subject to adjustment from time to time as provided in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase all of the
underlying shares set forth above from and after (i) the Company's
determination that during calendar year 2000 Employee shall have
effected the acquisition on behalf of the Company of not less than $6.0
million run rate of Acquired EBT (as defined below) or (ii) if the
condition set
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forth in clause (i) of this subsection 1.1(a) is not satisfied, March
16, 2009 if at such time Mr. Byerley is an employee of the Company
(each of the events set forth in clauses (i) and (ii) hereof, an
"Exercise Date" and collectively from time to time, the "Exercise
Dates"). For purposes of this Warrant, "Acquired EBT" shall mean the
earnings before taxes of the acquired entities or assets based upon
generally accepted accounting principles consistently applied and
including all operating business expenses and interest on capital
expenditures in excess of associated goodwill and excluding the pro
forma amortization of goodwill associated with the purchase proceeds
(based on a thirty (30) year amortization schedule). The Company shall
complete its calculation of Acquired EBT for calendar year 2000 on or
before May 15, 2001. In the event that Acquired EBT for calendar year
2000 is determined to be $6.0 million or greater this Warrant shall be
fully exercisable to and including 5:00 p.m. New York City time on
March 16, 2010; in the event that Acquired EBIT for calendar year 2000
is determined to be less than $6.0 million, this Warrant shall only be
exercisable in accordance with subsection 1.1(a)(ii) above.
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.5 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
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Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. Subject to subsection
1.3, this Warrant shall not be exercisable, and no Warrant Shares shall be
issued hereunder, prior to 9:00 A.M. New York City time on the First Exercise
Date.
1.3 EXERCISE UPON TERMINATION WITHOUT CAUSE FOLLOWING A CHANGE OF
CONTROL. Upon termination of David Byerley's employment with the Company without
cause as described in David Byerley's Employment Agreement with the Company at
any time during the term of this Warrant following a Change in Control (as
defined below), this Warrant shall immediately vest in its entirety with respect
to the Warrantholder's right to purchase all of the shares underlying the
Warrant and may be exercised in whole or in part from time to time through and
including the Expiration Date. A "Change in Control" shall be deemed to have
occurred if:
(i) Any person, other than the Company or an
employee benefit plan of the Company, acquires directly or
indirectly the Beneficial Ownership (as defined in Section
13(d) of the Securities and Exchange Act of 1934, as amended
(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
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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
outstanding voting securities, or consummation of any such
transaction if stockholder approval is not sought or obtained,
other than any such transaction which would result in at least
75% of the total voting power represented by the voting
securities of the surviving entity outstanding immediately
after such transaction being Beneficially Owned by at least
75% of the holders of outstanding voting securities of the
Company immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such
continuing holders not substantially altered in the
transaction; or
(iv) The stockholders of the Company shall
approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
a substantial portion of the Company's assets (I.E., 50% or
more of the total assets of the Company).
In the event of David Byerley's death prior to the Expiration Date, this Warrant
may be exercised to the extent then exercisable by Mr. Byerley'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
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(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
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1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or
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the Exercise Price in order to preserve the relative rights
and interests of the Warrantholders, such adjustments to be
made by the good faith determination of the Board of Directors
of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than March 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new
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registration statement or to proceed with such actions as reasonably may be
required to cause the registration statement to become effective within a
reasonable time after the consummation of the event or transaction which
required such withdrawal or delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
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: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby
irrevocably elects to exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares and herewith tenders payment for such
Warrant Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is
_____________________________________.
Date _________________ Signature _________________________
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 42
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 JONATHAN
SHAW or permitted registered assigns (the "Warrantholder" or "Warrantholders"),
the right to subscribe for and purchase from the Company, at $26.375 per share
(the "Exercise Price"), twelve thousand three hundred seventy-five (12,375)
shares of the Company's Common Stock, par value $0.01 per share (the "Common
Stock"), subject to the provisions and upon the terms and conditions herein set
forth. The Exercise Price and the number of Warrant Shares are subject to
adjustment from time to time as provided in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase all of the
underlying shares set forth above from and after (i) the Company's
determination that during calendar year 2000 the Initial SBU EBT (as
defined below) of the Company's FYI Image strategic business unit is
equal to or greater than $26,057,000 plus any Acquired SBU EBT (as
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defined below) or (ii) if the condition set forth in clause (i) of this
subsection 1.1(a) is not satisfied, March 16, 2009 if at such time Mr.
Shaw is an employee of the Company (each of the events set forth in
clauses (i) and (ii) hereof, an "Exercise Date" and collectively from
time to time, the "Exercise Dates"). For purposes of this Warrant,
"Initial SBU EBT" shall mean the earnings before taxes of the entities
within the FYI Image strategic business unit at the date of this
Warrant and "Acquired SBU EBT" shall mean the earnings before taxes of
entities or assets within such business unit acquired after the date of
this Warrant and during calendar year 2000 and thereafter managed by
Mr. Shaw on a pro rata basis for the balance of such year, in each
event based upon generally accepted accounting principles consistently
applied and including all operating business expenses and interest on
capital expenditures in excess of associated goodwill and excluding any
pro forma amortization of goodwill associated with the purchase
proceeds based on a thirty (30) year amortization schedule (Initial SBU
EBT and Acquired SBU EBT, together "SBU EBT"). The Company shall
complete its calculation of SBU EBT for calendar year 2000 on or before
May 15, 2001. In the event that Initial SBU EBT for calendar year 2000
is determined to be $26,057,000 or greater plus any Acquired SBU EBT,
this Warrant shall be fully exercisable to and including 5:00 p.m. New
York City time on March 16, 2010; in the event that Initial SBU EBT for
calendar year 2000 is determined to be less than $26,057,000, this
Warrant shall only be exercisable in accordance with subsection
1.1(a)(ii) above.
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the Warrantholder
decides to exercise the Warrant pursuant to the broker-assisted
cashless exercise program instituted by the Company, an applicable
exercise form provided by the Company (the "Exercise Form") duly
executed by the Warrantholder of record and specifying the number of
Warrant Shares to be purchased, to the Company at the office of the
Company located at 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. on the Expiration Date (or 5:00 P.M. on the next
succeeding Business Day, if the Expiration Date is a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing House
Funds, of the Exercise Price for the number of Warrant Shares specified
in the Exercise Form (such payment may be made by the Warrantholder
directly or by a designated broker pursuant to
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the broker-assisted cashless exercise program instituted by the
Company, subject to subsection 1.5 herein) and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. Subject to subsection
1.3, this Warrant shall not be exercisable, and no Warrant Shares shall be
issued hereunder, prior to 9:00 A.M. New York City time on the First Exercise
Date.
1.3 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON FOLLOWING CHANGE
OF CONTROL. Upon termination of Jonathan Shaw's employment with the Company
"without cause" or for "good reason" as described in Jonathan Shaw's Employment
Agreement with the Company at any time during the term of this Warrant following
a Change in Control (as defined below), this Warrant shall immediately vest in
its entirety with respect to the Warrantholder's right to purchase all of the
shares underlying the Warrant and may be exercised in whole or in part from time
to time through and including the Expiration Date. A "Change in Control" shall
be deemed to have occurred if:
(i) Any person, other than the Company or an
employee benefit plan of the Company, acquires directly or
indirectly the Beneficial Ownership (as defined in Section
13(d) of the Securities and Exchange Act of 1934, as amended
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(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
outstanding voting securities, or consummation of any such
transaction if stockholder approval is not sought or obtained,
other than any such transaction which would result in at least
75% of the total voting power represented by the voting
securities of the surviving entity outstanding immediately
after such transaction being Beneficially Owned by at least
75% of the holders of outstanding voting securities of the
Company immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such
continuing holders not substantially altered in the
transaction; or
(iv) The stockholders of the Company shall
approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
a substantial portion of the Company's assets (I.E., 50% or
more of the total assets of the Company).
In the event of Jonathan Shaw's death prior to the Expiration Date, this Warrant
may be exercised to the extent then exercisable by Mr. Shaw'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.
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1.5 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.5
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants representing one Warrant Share or multiples thereof, upon surrender at
the principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.5 or 1.6 and in accordance with the provisions thereof, upon
surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant of like tenor in the name of
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the assignee named in such instrument of assignment and this Warrant shall
promptly be canceled. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in the case
of loss, theft or destruction, of such bond or indemnification as the Company
may reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used herein includes any Warrants issued in
substitution or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.5 or in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
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(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than March 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
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The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
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: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby
irrevocably elects to exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares and herewith tenders payment for such
Warrant Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is
_____________________________________.
Date _________________ Signature _________________________
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 43
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 PHILLIP
L. HODGKINS or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), ten thousand nine hundred thirty-eight
(10,938) shares of the Company's Common Stock, par value $0.01 per share (the
"Common Stock"), subject to the provisions and upon the terms and conditions
herein set forth. The Exercise Price and the number of Warrant Shares are
subject to adjustment from time to time as provided in subsection 1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase all of the
underlying shares set forth above upon satisfaction of the conditions
set forth in ANNEX A to this Warrant or (i) if the conditions set forth
in clause (i) of this subsection 1.1(a) are not satisfied, March 16,
2009 if at such time Mr. Hodgkins is an employee of the Company (each
of the
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events set forth in clauses (i) and (ii) hereof, an "Exercise Date" and
collectively from time to time, the "Exercise Dates"). The Company
shall complete its calculations with respect to the satisfaction of the
conditions set forth on ANNEX A on or before May 15, 2001. In the event
that the Company determines that such conditions have been satisfied,
this Warrant shall be fully exercisable to and including 5:00 p.m. New
York City time on March 16, 2010 (the "Expiration Date"); in the event
that the Company determines that such conditions have not been
satisfied, this Warrant shall only be exercisable in accordance with
subsection 1.1(a)(ii) above.
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.4 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
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shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATIONS ON EXERCISE.
(a) If this Warrant is not exercised prior to 5:00 P.M.
on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant
issued pursuant to subsection 1.1, shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall
cease. In the event of Mr. Hodgkins' death prior to the Expiration
Date, this Warrant may be exercised only to the extent then exercisable
by Mr. Hodgkins' legal representative through the Closing Date. This
Warrant shall not be exercisable, and no Warrant Shares shall be issued
hereunder, prior to 9:00 A.M. New York City time on the first Exercise
Date.
(b) Upon termination of Mr. Hodgkins' employment with the
Company, this Warrant may be exercised only to the extent then
exercisable through and including the Expiration Date.
(c) In the event of Phillip L. Hodgkins' death prior to
the Expiration Date, this Warrant may be exercised to the extent then
exercisable by Mr. Hodgkins' legal representative through the
Expiration 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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any
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manner transferred or disposed of, in whole or in part, except in
compliance with applicable United States federal and state securities
laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.5 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 below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.6 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.4 or 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
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mutilation, upon surrender and cancellation of this Warrant, the Company will
execute and deliver a new Warrant of like tenor. The term "Warrant" as used
herein includes any Warrants issued in substitution or exchange of this Warrant.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.9) or rights, options or warrants,
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or convertible or exchangeable securities containing the right
to subscribe for or purchase shares of Common Stock,
appropriate adjustments shall be made to the number of Warrant
Shares purchasable upon the exercise of the Warrant and/or the
Exercise Price in order to preserve the relative rights and
interests of the Warrantholders, such adjustments to be made
by the good faith determination of the Board of Directors of
the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing
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for its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
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: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby
irrevocably elects to exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares and herewith tenders payment for such
Warrant Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is ____________________________________.
Date _________________ Signature _________________________
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ANNEX A
11
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 44
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
DELGADO or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), ten thousand nine hundred thirty-eight
(10,938) shares of the Company's Common Stock, par value $0.01 per share (the
"Common Stock"), subject to the provisions and upon the terms and conditions
herein set forth. The Exercise Price and the number of Warrant Shares are
subject to adjustment from time to time as provided in subsection 1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase all of the
underlying shares set forth above upon satisfaction of the conditions
set forth in ANNEX A to this Warrant or (i) if the conditions set forth
in clause (i) of this subsection 1.1(a) are not satisfied, March 16,
2009 if at such time Mr. Delgado is an employee of the Company (each of
the events
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set forth in clauses (i) and (ii) hereof, an "Exercise Date" and
collectively from time to time, the "Exercise Dates"). The Company
shall complete its calculations with respect to the satisfaction of the
conditions set forth on ANNEX A on or before May 15, 2001. In the event
that the Company determines that such conditions have been satisfied,
this Warrant shall be fully exercisable to and including 5:00 p.m. New
York City time on March 16, 2010 (the "Expiration Date"); in the event
that the Company determines that such conditions have not been
satisfied, this Warrant shall only be exercisable in accordance with
subsection 1.1(a)(ii) above.
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.4 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
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shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATIONS ON EXERCISE.
(a) If this Warrant is not exercised prior to 5:00 P.M.
on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant
issued pursuant to subsection 1.1, shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall
cease. In the event of Mr. Delgado's death prior to the Expiration
Date, this Warrant may be exercised only to the extent then exercisable
by Mr. Delgado's legal representative through the Expiration Date. This
Warrant shall not be exercisable, and no Warrant Shares shall be issued
hereunder, prior to 9:00 A.M. New York City time on the first Exercise
Date.
(b) Upon termination of Mr. Delgado's employment with the
Company, this Warrant may be exercised only to the extent then
exercisable through and including the Expiration Date.
(c) In the event of David Delgado's death prior to the
Expiration Date, this Warrant may be exercised to the extent then
exercisable by Mr. Delgado's legal representative through the
Expiration 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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any
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<PAGE>
manner transferred or disposed of, in whole or in part, except in
compliance with applicable United States federal and state securities
laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.5 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 below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.6 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.4 or 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
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<PAGE>
mutilation, upon surrender and cancellation of this Warrant, the Company will
execute and deliver a new Warrant of like tenor. The term "Warrant" as used
herein includes any Warrants issued in substitution or exchange of this Warrant.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.9) or rights, options or warrants,
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or convertible or exchangeable securities containing the right
to subscribe for or purchase shares of Common Stock,
appropriate adjustments shall be made to the number of Warrant
Shares purchasable upon the exercise of the Warrant and/or the
Exercise Price in order to preserve the relative rights and
interests of the Warrantholders, such adjustments to be made
by the good faith determination of the Board of Directors of
the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing
6
<PAGE>
for its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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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<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
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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<PAGE>
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: March 16, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
ANNEX A
11
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010 (THE "EXPIRATION DATE").
****************************************
Number 45
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 GENE
MARZANO or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), eight thousand four hundred
thirty-eight (8,438) shares of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), subject to the provisions and upon the terms and
conditions herein set forth. The Exercise Price and the number of Warrant Shares
are subject to adjustment from time to time as provided in subsection 1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) six
thousand three hundred twenty-eight (6,328) of the underlying shares
set forth above from and after the Company's determination that during
calendar year 2000 the Company's FYI
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<PAGE>
HealthSERVE strategic business unit has executed contracts with an
aggregate annualized contract revenue for the first twelve (12) months
of the terms thereof of $17,000,000 or greater, (ii) one thousand two
hundred sixty-six (1,266) of the underlying shares set forth above from
and after the Company's determination that during calendar year 2000
the Initial SBU EBT (as defined below) of the Company's FYI HealthSERVE
strategic business unit is equal to or greater than $15,637,000 plus
any Acquired SBU EBT (as defined below), (iii) eight hundred forty-four
(844) of the underlying shares set forth above from and after the
Company's determination that the SBU EBT (as defined below) generated
by the Professional Services Division of the FYI HealthSERVE strategic
business unit (E.G., Associate Record Technician Services Acquisition
Corp. and Managed Care Professionals, Inc.) is equal to or greater than
$3,225,000 plus any Acquired SBU EBT allocable to such division; and
(iv) notwithstanding the foregoing, all of the underlying shares at
March 16, 2009 if at such time Mr. Marzano is an employee of the
Company (each of the events set forth in clauses (i) through (iv)
hereof, an "Exercise Date" and collectively from time to time, the
"Exercise Dates"). For purposes of this Warrant, "Initial SBU EBT"
shall mean the earnings before taxes of the entities within the FYI
HealthSERVE strategic business unit or relevant portion thereof at the
date of this Warrant and "Acquired SBU EBT" shall mean the earnings
before taxes of entities or assets acquired after the date of this
Warrant and during calendar year 2000 on a pro rata basis for the
balance of such year, in each event based upon generally accepted
accounting principles consistently applied and including all operating
business expenses and interest on capital expenditures in excess of
associated goodwill and excluding any pro forma amortization of
goodwill associated with the purchase proceeds based on a thirty (30)
year amortization schedule (Initial SBU EBT and Acquired SBU EBT,
together "SBU EBT"). The Company shall complete its calculations of SBU
EBT and contract review for the FYI HealthSERVE strategic business unit
for calendar year 2000 necessary to determine whether the conditions
set forth in clauses (i) through (iii) of this subsection 1.1(a) have
been satisfied in whole or in part on or before May 15, 2001.
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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
2
<PAGE>
Date but not later than 5:00 P.M. on the Expiration Date (or
5:00 P.M. on the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.4 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATIONS ON EXERCISE.
(a) If this Warrant is not exercised prior to 5:00 P.M.
on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant
issued pursuant to subsection 1.1, shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall
cease. In the event of Mr. Marzano's death prior to the Expiration
Date, this Warrant may be exercised only to the extent then exercisable
by Mr. Marzano's legal representative through the Expiration Date. This
Warrant shall not be exercisable, and no Warrant Shares shall be issued
hereunder, prior to 9:00 A.M. New York City time on the first Exercise
Date.
3
<PAGE>
(b) Upon termination of Mr. Marzano's employment with the
Company, this Warrant may be exercised only to the extent then
exercisable through and including the Expiration Date.
(c) In the event of Gene Marzano's death prior to the
Expiration Date, this Warrant may be exercised to the extent then
exercisable by Mr. Marzano's legal representative through the
Expiration 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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.5 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 below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.6 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,
4
<PAGE>
security interests, charges and other encumbrances with respect to the issue
thereof other than taxes in respect of any transfer occurring contemporaneously
with such issue. During the period within which this Warrant may be exercised,
the Company shall at all times have authorized and reserved, and keep available
free from preemptive rights, a sufficient number of shares of Common Stock to
provide for the exercise of this Warrant, and shall at its expense use its best
efforts to procure such listing thereof (subject to official notice of issuance)
as then may be required on all stock exchanges on which the Common Stock is then
listed or on the Nasdaq National Market. The Company shall, from time to time,
take all such action as may be required to assure that the par value per share
of the Warrant Shares is at all times equal to or less than the then effective
Exercise Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.4 or 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.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other
5
<PAGE>
securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events
described above, had this Warrant been exercised immediately prior
to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall
become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.9) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the
6
<PAGE>
happening of such consolidation, merger, sale, transfer or lease had this
Warrant been exercised immediately prior to such action; PROVIDED, HOWEVER, that
no adjustment in respect of cash dividends, interest or other income on or from
such shares or other securities and property shall be made during the term of
this Warrant or upon the exercise of this Warrant. Such agreement shall provide
for adjustments, which shall be as nearly equivalent as practicable to the
adjustments provided for in this Section 5. The provisions of this Section 5
shall apply similarly to successive consolidations, mergers, sales, transfers or
leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party
7
<PAGE>
hereto to be performed or complied with. The waiver by any such party of a
breach of any term or provision of this Warrant shall not be construed as a
waiver of any subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
8
<PAGE>
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number of Warrant
Shares is involved, such number shall be appropriately adjusted to reflect any
stock split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
9
<PAGE>
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: March 16, 2000
10
<PAGE>
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 _________________________
11
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 46
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 JOAN
G. HAWORTH or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company,
at $26.375 per share (the "Exercise Price"), thirteen thousand two hundred
fifty (13,250) shares of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), subject to the provisions and upon the terms and
conditions herein set forth. The Exercise Price and the number of Warrant
Shares are subject to adjustment from time to time as provided in subsection
1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase all of the
underlying shares set forth above from and after April 30, 2000 (the
"Exercise Date") to and including 5:00 p.m. New York City time on March
16, 2010 (the "Expiration Date").
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(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.4 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the
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exercise of this Warrant for any cash dividends paid or payable to
holders of record of Common Stock prior to the date as of which the
Warrantholder shall be deemed to be the record holder of such Warrant
Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date. In the event of Ms. Haworth's
death prior to the Expiration Date, this Warrant may be exercised to the extent
then exercisable by Ms. Haworth's legal representative through the Expiration
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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.5 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 below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name
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other than that of the Warrantholder of record; PROVIDED, HOWEVER, that the
Warrantholder shall be required to pay any and all transfer taxes with respect
thereto.
1.6 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.4 or 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.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its
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outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issue by reclassification of its shares of Common
Stock other securities of the Company (including any such
reclassification in connection with a consolidation or merger in which
the Company is the surviving corporation), the number of Warrant Shares
purchasable upon exercise of this Warrant shall be adjusted so that the
Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would have
owned or have been entitled to receive after the happening of any of
the events described above, had this Warrant been exercised immediately
prior to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.9) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case
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of any sale, transfer or lease to another corporation of all or substantially
all of the property of the Company, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the
Warrantholders an agreement that the Warrantholders shall have the right
thereafter upon payment of the Exercise Price in effect immediately prior to
such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned
or have been entitled to receive after the happening of such consolidation,
merger, sale, transfer or lease had this Warrant been exercised immediately
prior to such action; PROVIDED, HOWEVER, that no adjustment in respect of
cash dividends, interest or other income on or from such shares or other
securities and property shall be made during the term of this Warrant or upon
the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments
provided for in this Section 5. The provisions of this Section 5 shall apply
similarly to successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
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7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
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7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number of Warrant
Shares is involved, such number shall be appropriately adjusted to reflect any
stock split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
-----------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby
irrevocably elects to exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares and herewith tenders payment for
such Warrant Shares to the order of F.Y.I. INCORPORATED, in the amount of
$_______ in accordance with the terms of this Warrant. The undersigned
requests that a certificate for such Warrant Shares be registered in the name
of _________________________________ and that such certificate be delivered
to _________________________ whose address is ________________________________
___________________________________.
Date _________________ Signature _________________________
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 47
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 CHARLES T.
HAWORTH or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), thirteen thousand two hundred fifty
(13,250) shares of the Company's Common Stock, par value $0.01 per share (the
"Common Stock"), subject to the provisions and upon the terms and conditions
herein set forth. The Exercise Price and the number of Warrant Shares are
subject to adjustment from time to time as provided in subsection 1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase all of the
underlying shares set forth above from and after April 30, 2000 (the
"Exercise Date") to and including 5:00 p.m. New York City time on March
16, 2010 (the "Expiration Date").
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(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.4 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the
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exercise of this Warrant for any cash dividends paid or payable to
holders of record of Common Stock prior to the date as of which the
Warrantholder shall be deemed to be the record holder of such Warrant
Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date. In the event of Mr. Haworth's
death prior to the Expiration Date, this Warrant may be exercised to the extent
then exercisable by Mr. Haworth's legal representative through the Expiration
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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.5 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 below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name
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other than that of the Warrantholder of record; PROVIDED, HOWEVER, that the
Warrantholder shall be required to pay any and all transfer taxes with respect
thereto.
1.6 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.4 or 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.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its
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outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issue by reclassification of its shares of Common
Stock other securities of the Company (including any such
reclassification in connection with a consolidation or merger in which
the Company is the surviving corporation), the number of Warrant Shares
purchasable upon exercise of this Warrant shall be adjusted so that the
Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would have
owned or have been entitled to receive after the happening of any of
the events described above, had this Warrant been exercised immediately
prior to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.9) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case
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of any sale, transfer or lease to another corporation of all or substantially
all of the property of the Company, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrantholders an
agreement that the Warrantholders shall have the right thereafter upon payment
of the Exercise Price in effect immediately prior to such action to purchase
upon exercise of this Warrant the kind and amount of shares and other securities
and property which such holder would have owned or have been entitled to receive
after the happening of such consolidation, merger, sale, transfer or lease had
this Warrant been exercised immediately prior to such action; PROVIDED, HOWEVER,
that no adjustment in respect of cash dividends, interest or other income on or
from such shares or other securities and property shall be made during the term
of this Warrant or upon the exercise of this Warrant. Such agreement shall
provide for adjustments, which shall be as nearly equivalent as practicable to
the adjustments provided for in this Section 5. The provisions of this Section 5
shall apply similarly to successive consolidations, mergers, sales, transfers or
leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
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7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
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7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number of Warrant
Shares is involved, such number shall be appropriately adjusted to reflect any
stock split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
-----------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: March 16, 2000
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<PAGE>
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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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 48
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 DELGADO or
permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $26.375 per share (the
"Exercise Price"), nine thousand three hundred seventy-five (9,375) shares of
the Company's Common Stock, par value $0.01 per share (the "Common Stock"),
subject to the provisions and upon the terms and conditions herein set forth.
The Exercise Price and the number of Warrant Shares are subject to adjustment
from time to time as provided in subsection 1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE; PAYMENT OF
TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase all of the underlying
shares set forth above from and after April 30, 2000 (the "Exercise Date")
to and including 5:00 p.m. New York City time on March 16, 2010 (the
"Expiration Date").
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(b) The rights represented by this Warrant may be exercised by the
Warrantholder of record, in whole, or from time to time in part, by:
(i) Surrender of this Warrant, accompanied by either the Exercise
Form annexed hereto, or if the Warrantholder decides to exercise the
Warrant pursuant to the broker-assisted cashless exercise program
instituted by the Company, an applicable exercise form provided by the
Company (the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be purchased, to
the Company at the office of the Company located at 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. on
the Expiration Date (or 5:00 P.M. on the next succeeding Business Day,
if the Expiration Date is a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash or by certified
or official bank check in New York Clearing House Funds, of the
Exercise Price for the number of Warrant Shares specified in the
Exercise Form (such payment may be made by the Warrantholder directly
or by a designated broker pursuant to the broker-assisted cashless
exercise program instituted by the Company, subject to subsection 1.4
herein) and
(iii) Such documentation as to the identity and authority of the
Warrantholder as the Company may reasonably request.
Such Warrant Shares shall be deemed by the Company to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close
of business on the date on which this Warrant shall have been surrendered
and payment made for the Warrant Shares as aforesaid. Certificates for the
Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder (or designated broker, as the case may be) as promptly as
practicable, and in any event within 10 business days, thereafter. The
stock certificates so delivered shall be in denominations of at least one
thousand (1,000) shares each or such other denomination as may be specified
by the Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the
certificates for the Warrant Shares, deliver to the Warrantholder (or
designated broker, as the case may be) a new Warrant evidencing the rights
to purchase the remaining Warrant Shares, which new Warrant shall in all
other respects be identical with this Warrant. No adjustments or payments
shall be made on or in respect of Warrant Shares issuable on the
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exercise of this Warrant for any cash dividends paid or payable to holders
of record of Common Stock prior to the date as of which the Warrantholder
shall be deemed to be the record holder of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior to 5:00
P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the Exercise Date. In the event of Mr. Delgado's
death prior to the Expiration Date, this Warrant may be exercised to the extent
then exercisable by Mr. Delgado's legal representative through the Expiration
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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing, neither this
Warrant nor any of the Warrant Shares, nor any interest or participation in
either, may be in any manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws.
(b) Each certificate for Warrant Shares and any Warrant issued at any
time in exchange or substitution for any Warrant bearing such a legend
shall bear a legend similar in effect to the foregoing paragraph unless, in
the opinion of counsel for the Company, the Warrant and the Warrant Shares
need no longer be subject to the restriction contained herein. The
provisions of this subsection 1.4 shall be binding upon all subsequent
holders of this Warrant and the Warrant Shares, if any. Warrant Shares
transferred to the public as expressly permitted by, and in accordance
with, the provisions of this Warrant shall thereafter cease to be deemed to
be "Warrant Shares" for purposes hereof.
1.5 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 below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name
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other than that of the Warrantholder of record; PROVIDED, HOWEVER, that the
Warrantholder shall be required to pay any and all transfer taxes with respect
thereto.
1.6 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares which are
issued upon the exercise of the rights represented by this Warrant shall, upon
issuance and payment of the Exercise Price, be validly issued, fully paid and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof other than taxes in respect
of any transfer occurring contemporaneously with such issue. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved, and keep available free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant, and shall at its expense use its best efforts to procure such listing
thereof (subject to official notice of issuance) as then may be required on all
stock exchanges on which the Common Stock is then listed or on the Nasdaq
National Market. The Company shall, from time to time, take all such action as
may be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by subsections
1.4 or 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.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant Shares may be
purchased hereunder, and the number of Warrant Shares to be purchased upon
exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (iii) combine its
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<PAGE>
outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issue by reclassification of its shares of Common
Stock other securities of the Company (including any such reclassification
in connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder shall
be entitled to receive the kind and number of Warrant Shares or other
securities of the Company which he would have owned or have been entitled
to receive after the happening of any of the events described above, had
this Warrant been exercised immediately prior to the happening of such
event or any record date with respect thereto. An adjustment made pursuant
to this paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for
such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all holders of its
outstanding Common Stock, without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at
a price per share which is lower at the record date for the
determination of stockholders entitled to receive such rights, options
or warrants than the then current market price per share of Common
Stock, or
(ii) Distribute to all holders of its shares of Common Stock
evidences of its indebtedness or assets (excluding cash dividends or
distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in paragraph (a) of this
subsection 1.9) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock, appropriate adjustments shall be made
to the number of Warrant Shares purchasable upon the exercise of the
Warrant and/or the Exercise Price in order to preserve the relative
rights and interests of the Warrantholders, such adjustments to be
made by the good faith determination of the Board of Directors of the
Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option, at
any time during the term of the Warrants, reduce the then current Exercise Price
to any amount, consistent with applicable law, deemed appropriate by the Board
of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of any cash
dividends shall be made during the term of this Warrant or upon the exercise of
this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In case
of any consolidation of the Company with or merger of the Company into another
corporation or in case
5
<PAGE>
of any sale, transfer or lease to another corporation of all or substantially
all of the property of the Company, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrantholders an
agreement that the Warrantholders shall have the right thereafter upon payment
of the Exercise Price in effect immediately prior to such action to purchase
upon exercise of this Warrant the kind and amount of shares and other securities
and property which such holder would have owned or have been entitled to receive
after the happening of such consolidation, merger, sale, transfer or lease had
this Warrant been exercised immediately prior to such action; PROVIDED, HOWEVER,
that no adjustment in respect of cash dividends, interest or other income on or
from such shares or other securities and property shall be made during the term
of this Warrant or upon the exercise of this Warrant. Such agreement shall
provide for adjustments, which shall be as nearly equivalent as practicable to
the adjustments provided for in this Section 5. The provisions of this Section 5
shall apply similarly to successive consolidations, mergers, sales, transfers or
leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the Company shall
file a registration statement covering the Warrant Shares on a Form S-8, which
registration statement shall be effective upon the filing thereof. The Company
shall use its best efforts to keep such Form S-8 current and effective until the
earlier of the Expiration Date or the date this Warrant has been exercised in
full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company, the Warrantholder and holders of Warrant
Shares and their respective heirs, legal representatives, successors and
assigns. Nothing in this Warrant, expressed or implied, is intended to or shall
confer on any person other than the Company, the Warrantholders and holders of
Warrant Shares, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant or the Warrant Shares.
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7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended
except by an instrument in writing signed by the Company and Warrantholders that
hold Warrants entitling them to purchase at least 50% of the Warrant Shares. The
Company, any Warrantholder or holders of Warrant Shares may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders and holders
of Warrant Shares shall do and perform all such further acts and things and
execute and deliver all such other certificates, instruments and/or documents
(including without limitation, such proxies and/or powers of attorney as may be
necessary or appropriate) as any party hereto may, at any time and from time to
time, reasonably request in connection with the performance of any of the
provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other communications
required or permitted to be given under this Warrant shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
United States certified or registered first class mail, postage prepaid, to the
parties hereto at the following addresses or at such other address as any party
hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares, addressed to
the address of such person then appearing on the books of the Company.
Except as otherwise provided herein, all such demands, requests, notices
and other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable any other term or provision of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
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<PAGE>
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by virtue of
this Warrant, be entitled to any rights of a stockholder of the Company, either
at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this Agreement
are available only when at least a specified minimum number of Warrant Shares is
involved, such number shall be appropriately adjusted to reflect any stock
split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
8
<PAGE>
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: March 16, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 49
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 JOAN G. HAWORTH
or permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $26.375 per share (the
"Exercise Price"), six thousand six hundred twenty-five (6,625) shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), subject
to the provisions and upon the terms and conditions herein set forth. The
Exercise Price and the number of Warrant Shares are subject to adjustment from
time to time as provided in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE; PAYMENT OF
TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 50% of the
underlying shares set forth above from and after January 1, 2001, and (ii)
50% of the underlying shares set forth above from and after January 1, 2002
(each of the events set forth in clauses (i) and (ii) hereof, an "Exercise
Date" and collectively from time to time, the
1
<PAGE>
"Exercise Dates") to and including 5:00 p.m. New York City time on March
16, 2010 (the "Expiration Date").
(b) The rights represented by this Warrant may be exercised by the
Warrantholder of record, in whole, or from time to time in part, by:
(i) Surrender of this Warrant, accompanied by either the Exercise
Form annexed hereto, or if the Warrantholder decides to exercise the
Warrant pursuant to the broker-assisted cashless exercise program
instituted by the Company, an applicable exercise form provided by the
Company (the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be purchased, to
the Company at the office of the Company located at 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. on
the Expiration Date (or 5:00 P.M. on the next succeeding Business Day,
if the Expiration Date is a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash or by certified
or official bank check in New York Clearing House Funds, of the
Exercise Price for the number of Warrant Shares specified in the
Exercise Form (such payment may be made by the Warrantholder directly
or by a designated broker pursuant to the broker-assisted cashless
exercise program instituted by the Company, subject to subsection 1.5
herein) and
(iii) Such documentation as to the identity and authority of the
Warrantholder as the Company may reasonably request.
Such Warrant Shares shall be deemed by the Company to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close
of business on the date on which this Warrant shall have been surrendered
and payment made for the Warrant Shares as aforesaid. Certificates for the
Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder (or designated broker, as the case may be) as promptly as
practicable, and in any event within 10 business days, thereafter. The
stock certificates so delivered shall be in denominations of at least one
thousand (1,000) shares each or such other denomination as may be specified
by the Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the
certificates for the Warrant Shares, deliver to the Warrantholder (or
designated broker, as the case may
2
<PAGE>
be) a new Warrant evidencing the rights to purchase the remaining Warrant
Shares, which new Warrant shall in all other respects be identical with
this Warrant. No adjustments or payments shall be made on or in respect of
Warrant Shares issuable on the exercise of this Warrant for any cash
dividends paid or payable to holders of record of Common Stock prior to the
date as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior to 5:00
P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the first Exercise Date. In the event of Ms.
Haworth's death prior the Expiration Date, this Warrant may be exercised to the
extent then exercisable by Ms. Haworth's legal representative through the
Expiration Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Joan G. Haworth's
employment with the Company or Economic Research Services, Inc. (the
"Subsidiary") by the Company or the Subsidiary for any reason this Warrant shall
not be exercisable and shall become void and all rights of the Warrantholder
shall cease. Upon termination by Ms. Haworth of her employment with the Company
and the Subsidiary, this Warrant may be exercised to the extent it has vested as
of such date and for three (3) months thereafter up to and including the
Expiration Date. Subject to the foregoing, in the event of Joan G. Haworth's
death, this Warrant may be exercised to the extent vested, at the time of death
by Ms. Haworth'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing, neither this
Warrant nor any of the Warrant Shares, nor any interest or participation in
either, may be in any manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws.
(b) Each certificate for Warrant Shares and any Warrant issued at any
time in exchange or substitution for any Warrant bearing such a legend
shall bear a legend similar in effect to the foregoing paragraph unless, in
the opinion of counsel for the Company, the Warrant and the Warrant Shares
need no longer be subject to the restriction contained herein. The
provisions of this subsection 1.5 shall be binding upon
3
<PAGE>
all subsequent holders of this Warrant and the Warrant Shares, if any.
Warrant Shares transferred to the public as expressly permitted by, and in
accordance with, the provisions of this Warrant shall thereafter cease to
be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into warrants
representing one Warrant Share or multiples thereof, upon surrender at the
principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares which are
issued upon the exercise of the rights represented by this Warrant shall, upon
issuance and payment of the Exercise Price, be validly issued, fully paid and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof other than taxes in respect
of any transfer occurring contemporaneously with such issue. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved, and keep available free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant, and shall at its expense use its best efforts to procure such listing
thereof (subject to official notice of issuance) as then may be required on all
stock exchanges on which the Common Stock is then listed or on the Nasdaq
National Market. The Company shall, from time to time, take all such action as
may be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by subsections
1.5 or 1.6 and in accordance with the provisions thereof, upon surrender of this
Warrant to the Company with a duly executed instrument of assignment and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant of like tenor in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term "Warrant" as used herein includes any Warrants issued in substitution
or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall
4
<PAGE>
not be affected by any notice to the contrary, until presentation of this
Warrant for registration of transfer as provided in subsections 1.1 and 1.5 or
in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant Shares may be
purchased hereunder, and the number of Warrant Shares to be purchased upon
exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by reclassification
of its shares of Common Stock other securities of the Company (including
any such reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of Warrant
Shares purchasable upon exercise of this Warrant shall be adjusted so that
the Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would have owned
or have been entitled to receive after the happening of any of the events
described above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all holders of its
outstanding Common Stock, without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at
a price per share which is lower at the record date for the
determination of stockholders entitled to receive such rights, options
or warrants than the then current market price per share of Common
Stock, or
(ii) Distribute to all holders of its shares of Common Stock
evidences of its indebtedness or assets (excluding cash dividends or
distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in paragraph (a) of this
subsection 1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock, appropriate adjustments shall be made
to the number of Warrant Shares purchasable upon the exercise of the
Warrant and/or the Exercise Price in order to preserve the relative
rights and interests of the Warrantholders, such adjustments to be
made by the good faith determination of the Board of Directors of the
Company.
5
<PAGE>
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option, at
any time during the term of the Warrants, reduce the then current Exercise Price
to any amount, consistent with applicable law, deemed appropriate by the Board
of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of any cash
dividends shall be made during the term of this Warrant or upon the exercise of
this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In case
of any consolidation of the Company with or merger of the Company into another
corporation or in case of any sale, transfer or lease to another corporation of
all or substantially all of the property of the Company, the Company or such
successor or purchasing corporation, as the case may be, shall execute with the
Warrantholders an agreement that the Warrantholders shall have the right
thereafter upon payment of the Exercise Price in effect immediately prior to
such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; PROVIDED, HOWEVER, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the Company shall
file a registration statement covering the Warrant Shares on a Form S-8, which
registration statement shall be effective upon the filing thereof. The Company
shall use its best efforts to keep such Form S-8 current and effective until the
earlier of the Expiration Date or the date this Warrant has been exercised in
full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
6
<PAGE>
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company, the Warrantholder and holders of Warrant
Shares and their respective heirs, legal representatives, successors and
assigns. Nothing in this Warrant, expressed or implied, is intended to or shall
confer on any person other than the Company, the Warrantholders and holders of
Warrant Shares, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended
except by an instrument in writing signed by the Company and Warrantholders that
hold Warrants entitling them to purchase at least 50% of the Warrant Shares. The
Company, any Warrantholder or holders of Warrant Shares may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares, addressed to
the address of such person then appearing on the books of the Company.
Except as otherwise provided herein, all such demands, requests, notices
and other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable any other term or provision of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by virtue of
this Warrant, be entitled to any rights of a stockholder of the Company, either
at law or in equity.
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.
8
<PAGE>
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: March 16, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 50
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 CHARLES T.
HAWORTH or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), six thousand six hundred twenty-five
(6,625) shares of the Company's Common Stock, par value $0.01 per share (the
"Common Stock"), subject to the provisions and upon the terms and conditions
herein set forth. The Exercise Price and the number of Warrant Shares are
subject to adjustment from time to time as provided in subsection 1.10.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE; PAYMENT OF
TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 50% of the
underlying shares set forth above from and after January 1, 2001, and (ii)
50% of the underlying shares set forth above from and after January 1, 2002
(each of the events set forth in clauses (i) and (ii) hereof, an "Exercise
Date" and collectively from time to time, the
1
<PAGE>
"Exercise Dates") to and including 5:00 p.m. New York City time on March
16, 2010 (the "Expiration Date").
(b) The rights represented by this Warrant may be exercised by the
Warrantholder of record, in whole, or from time to time in part, by:
(i) Surrender of this Warrant, accompanied by either the Exercise
Form annexed hereto, or if the Warrantholder decides to exercise the
Warrant pursuant to the broker-assisted cashless exercise program
instituted by the Company, an applicable exercise form provided by the
Company (the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be purchased, to
the Company at the office of the Company located at 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. on
the Expiration Date (or 5:00 P.M. on the next succeeding Business Day,
if the Expiration Date is a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash or by certified
or official bank check in New York Clearing House Funds, of the
Exercise Price for the number of Warrant Shares specified in the
Exercise Form (such payment may be made by the Warrantholder directly
or by a designated broker pursuant to the broker-assisted cashless
exercise program instituted by the Company, subject to subsection 1.5
herein) and
(iii) Such documentation as to the identity and authority of the
Warrantholder as the Company may reasonably request.
Such Warrant Shares shall be deemed by the Company to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close
of business on the date on which this Warrant shall have been surrendered
and payment made for the Warrant Shares as aforesaid. Certificates for the
Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder (or designated broker, as the case may be) as promptly as
practicable, and in any event within 10 business days, thereafter. The
stock certificates so delivered shall be in denominations of at least one
thousand (1,000) shares each or such other denomination as may be specified
by the Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.5 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the
certificates for the Warrant Shares, deliver to the Warrantholder (or
designated broker, as the case may
2
<PAGE>
be) a new Warrant evidencing the rights to purchase the remaining Warrant
Shares, which new Warrant shall in all other respects be identical with
this Warrant. No adjustments or payments shall be made on or in respect of
Warrant Shares issuable on the exercise of this Warrant for any cash
dividends paid or payable to holders of record of Common Stock prior to the
date as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior to 5:00
P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the first Exercise Date. In the event of Mr.
Haworth's death prior to the Expiration Date, this Warrant may be exercised to
the extent then exercisable by Mr. Haworth's legal representative through the
Expiration Date.
1.3 EXERCISE UPON TERMINATION. Upon termination of Charles T. Haworth's
employment with the Company or Economic Research Services, Inc. (the
"Subsidiary") by the Company or the Subsidiary for any reason this Warrant shall
not be exercisable and shall become void and all rights of the Warrantholder
shall cease. Upon termination by Mr. Haworth of his employment with the Company
and the Subsidiary, this Warrant may be exercised to the extent it has vested as
of such date and for three (3) months thereafter up to and including the
Expiration Date. Subject to the foregoing, in the event of Charles T. Haworth's
death, this Warrant may be exercised to the extent vested, at the time of death
by Mr. Haworth'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 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing, neither this
Warrant nor any of the Warrant Shares, nor any interest or participation in
either, may be in any manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws.
(b) Each certificate for Warrant Shares and any Warrant issued at any
time in exchange or substitution for any Warrant bearing such a legend
shall bear a legend similar in effect to the foregoing paragraph unless, in
the opinion of counsel for the Company, the Warrant and the Warrant Shares
need no longer be subject to the restriction contained herein. The
provisions of this subsection 1.5 shall be binding upon
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all subsequent holders of this Warrant and the Warrant Shares, if any.
Warrant Shares transferred to the public as expressly permitted by, and in
accordance with, the provisions of this Warrant shall thereafter cease to
be deemed to be "Warrant Shares" for purposes hereof.
1.6 DIVISIBILITY OF WARRANT. This Warrant may be divided into warrants
representing one Warrant Share or multiples thereof, upon surrender at the
principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.5(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.7 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares which are
issued upon the exercise of the rights represented by this Warrant shall, upon
issuance and payment of the Exercise Price, be validly issued, fully paid and
nonassessable and free from all taxes, liens, security interests, charges and
other encumbrances with respect to the issue thereof other than taxes in respect
of any transfer occurring contemporaneously with such issue. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved, and keep available free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant, and shall at its expense use its best efforts to procure such listing
thereof (subject to official notice of issuance) as then may be required on all
stock exchanges on which the Common Stock is then listed or on the Nasdaq
National Market. The Company shall, from time to time, take all such action as
may be required to assure that the par value per share of the Warrant Shares is
at all times equal to or less than the then effective Exercise Price.
1.8 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by subsections
1.5 or 1.6 and in accordance with the provisions thereof, upon surrender of this
Warrant to the Company with a duly executed instrument of assignment and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant of like tenor in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term "Warrant" as used herein includes any Warrants issued in substitution
or exchange of this Warrant.
1.9 OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall
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not be affected by any notice to the contrary, until presentation of this
Warrant for registration of transfer as provided in subsections 1.1 and 1.5 or
in Section 3.
1.10 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant Shares may be
purchased hereunder, and the number of Warrant Shares to be purchased upon
exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this Warrant
and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) issue by reclassification
of its shares of Common Stock other securities of the Company (including
any such reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation), the number of Warrant
Shares purchasable upon exercise of this Warrant shall be adjusted so that
the Warrantholder shall be entitled to receive the kind and number of
Warrant Shares or other securities of the Company which he would have owned
or have been entitled to receive after the happening of any of the events
described above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all holders of its
outstanding Common Stock, without any charge to such holders,
entitling them to subscribe for or purchase shares of Common Stock at
a price per share which is lower at the record date for the
determination of stockholders entitled to receive such rights, options
or warrants than the then current market price per share of Common
Stock, or
(ii) Distribute to all holders of its shares of Common Stock
evidences of its indebtedness or assets (excluding cash dividends or
distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in paragraph (a) of this
subsection 1.10) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock, appropriate adjustments shall be made
to the number of Warrant Shares purchasable upon the exercise of the
Warrant and/or the Exercise Price in order to preserve the relative
rights and interests of the Warrantholders, such adjustments to be
made by the good faith determination of the Board of Directors of the
Company.
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2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option, at
any time during the term of the Warrants, reduce the then current Exercise Price
to any amount, consistent with applicable law, deemed appropriate by the Board
of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of any cash
dividends shall be made during the term of this Warrant or upon the exercise of
this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In case
of any consolidation of the Company with or merger of the Company into another
corporation or in case of any sale, transfer or lease to another corporation of
all or substantially all of the property of the Company, the Company or such
successor or purchasing corporation, as the case may be, shall execute with the
Warrantholders an agreement that the Warrantholders shall have the right
thereafter upon payment of the Exercise Price in effect immediately prior to
such action to purchase upon exercise of this Warrant the kind and amount of
shares and other securities and property which such holder would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, transfer or lease had this Warrant been exercised immediately prior to
such action; PROVIDED, HOWEVER, that no adjustment in respect of cash dividends,
interest or other income on or from such shares or other securities and property
shall be made during the term of this Warrant or upon the exercise of this
Warrant. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5 shall apply similarly to successive consolidations,
mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the Company shall
file a registration statement covering the Warrant Shares on a Form S-8, which
registration statement shall be effective upon the filing thereof. The Company
shall use its best efforts to keep such Form S-8 current and effective until the
earlier of the Expiration Date or the date this Warrant has been exercised in
full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
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7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company, the Warrantholder and holders of Warrant
Shares and their respective heirs, legal representatives, successors and
assigns. Nothing in this Warrant, expressed or implied, is intended to or shall
confer on any person other than the Company, the Warrantholders and holders of
Warrant Shares, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended
except by an instrument in writing signed by the Company and Warrantholders that
hold Warrants entitling them to purchase at least 50% of the Warrant Shares. The
Company, any Warrantholder or holders of Warrant Shares may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
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: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares, addressed to
the address of such person then appearing on the books of the Company.
Except as otherwise provided herein, all such demands, requests, notices
and other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable any other term or provision of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by virtue of
this Warrant, be entitled to any rights of a stockholder of the Company, either
at law or in equity.
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: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby irrevocably
elects to exercise the right, represented by this Warrant, to purchase
__________ of the Warrant Shares and herewith tenders payment for such Warrant
Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is ____________________________________.
Date _________________ Signature _________________________
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 51
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 MICHAEL
WICKMAN or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), 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 subsection 1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) 50% of
the underlying shares set forth above from and after January 1, 2001,
and (ii) 50% of the underlying shares set forth above from and after
January 1, 2002 (each of the events set forth in clauses (i) and (ii)
hereof, an "Exercise Date" and collectively from time to time, the
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"Exercise Dates") to and including 5:00 p.m. New York City time on
March 16, 2010 (the "Expiration Date").
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.4 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may
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be) a new Warrant evidencing the rights to purchase the remaining
Warrant Shares, which new Warrant shall in all other respects be
identical with this Warrant. No adjustments or payments shall be made
on or in respect of Warrant Shares issuable on the exercise of this
Warrant for any cash dividends paid or payable to holders of record of
Common Stock prior to the date as of which the Warrantholder shall be
deemed to be the record holder of such Warrant Shares.
1.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior
to 5:00 P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 1.1, shall cease to be exercisable and shall become void
and all rights of the Warrantholder hereunder shall cease. This Warrant shall
not be exercisable, and no Warrant Shares shall be issued hereunder, prior to
9:00 A.M. New York City time on the first Exercise Date. In the event of Mr.
Wickman's death prior to the Expiration Date, this Warrant may be exercised to
the extent then exercisable by Mr. Wickman's legal representative through the
Expiration 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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.5 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 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
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(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.6 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.4 or 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.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
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(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.9) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
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5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
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successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant
that is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
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invalidity or unenforceability without rendering invalid or unenforceable any
other term or provision of this Warrant or affecting the validity or
enforceability of any of the terms or provisions of this Warrant in any other
jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
7.10 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable
to contracts made and performed in Delaware.
7.11 EFFECT OF STOCK SPLITS, ETC. Whenever any rights under this
Agreement are available only when at least a specified minimum number of Warrant
Shares is involved, such number shall be appropriately adjusted to reflect any
stock split, stock dividend, combination of securities into a smaller number of
securities or reclassification of stock.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
F.Y.I. INCORPORATED
By: /s/ Ed H. Bowman, Jr.
-----------------------
Name: Ed H. Bowman, Jr.
Title: President and
Chief Executive Officer
Dated: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby
irrevocably elects to exercise the right, represented by this Warrant, to
purchase __________ of the Warrant Shares and herewith tenders payment for such
Warrant Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is ___________________________________
_____________________________________.
Date _________________ Signature _________________________
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 52
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
DELGADO or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), fifteen thousand (15,000) shares of
the Company's Common Stock, par value $0.01 per share (the "Common Stock"),
subject to the provisions and upon the terms and conditions herein set forth.
The Exercise Price and the number of Warrant Shares are subject to adjustment
from time to time as provided in subsection 1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase (i) fifty
percent (50%) of the underlying shares set forth above from and after
December 31, 2000 to and including 5:00 p.m. New York City time on
March 16, 2010 (the "Expiration Date"), and (ii) fifty percent (50%) of
the underlying shares set forth above from and after the Company's
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determination that during calendar year 2000 the Initial SBU EBT (as
defined below) of the Company's FYI Legal strategic business unit is
equal to or greater than $13,525,000 plus any Acquired SBU EBT (as
defined below) (each of the events set forth in clauses (i) and (ii)
hereof, an "Exercise Date" and collectively from time to time, the
"Exercise Dates"). For purposes of this Warrant, "Initial SBU EBT"
shall mean the earnings before taxes of the entities within the FYI
Legal strategic business unit at the date of this Warrant and "Acquired
SBU EBT" shall mean the earnings before taxes of entities or assets
within such business unit acquired after the date of this Warrant and
during calendar year 2000 and thereafter managed by Mr. Delgado on a
pro rata basis for the balance of such year, in each event based upon
generally accepted accounting principles consistently applied and
including all operating business expenses and interest on capital
expenditures in excess of associated goodwill and excluding any pro
forma amortization of goodwill associated with the purchase proceeds
based on a thirty (30) year amortization schedule (Initial SBU EBT and
Acquired SBU EBT, together "SBU EBT"). The Company shall complete its
calculation of SBU EBT for calendar year 2000 on or before May 15,
2001. In the event that Initial SBU EBT for calendar year 2000 is
determined to be $13,525,000 or greater plus any Acquired SBU EBT, this
Warrant shall be exercisable with respect to the underlying shares
described in subsection 1.1(a)(i) above; in the event that Initial SBU
EBT for calendar year 2000 is determined to be less than $13,525,000,
this Warrant shall only be exercisable with respect to the underlying
shares set forth in subsection 1.1(a)(i) above upon satisfaction of the
conditions set forth therein.
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may
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be made by the Warrantholder directly or by a designated
broker pursuant to the broker-assisted cashless exercise
program instituted by the Company, subject to subsection 1.4
herein) and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATION ON EXERCISE.
(a) If this Warrant is not exercised prior to 5:00 P.M.
on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant
issued pursuant to subsection 1.1, shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall
cease. This Warrant shall not be exercisable, and no Warrant Shares
shall be issued hereunder, prior to 9:00 A.M. New York City time on the
first Exercise Date. In the event Mr. Delgado's death prior to the
Expiration Date, this Warrant may be exercised to the extent then
exercisable by Mr. Delgado's legal representative through the
Expiration Date.
(b) Upon termination by Mr. Delgado of his employment
with the Company, this Warrant may be exercised only to the extent then
exercisable for a period of three months following the date of such
termination. In the event that Mr. Delgado's employment is terminated
by the Company, this Warrant shall be terminated and cease to be
exercisable upon notice of termination.
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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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.5 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 below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.6 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
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<PAGE>
to assure that the par value per share of the Warrant Shares is at all times
equal to or less than the then effective Exercise Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.4 or 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.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
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(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.9) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the
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adjustments provided for in this Section 5. The provisions of this Section 5
shall apply similarly to successive consolidations, mergers, sales, transfers or
leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
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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.
9
<PAGE>
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: March 16, 2000
10
<PAGE>
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 _________________________
11
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 53
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 LEO
COOPER or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), five thousand nine hundred
thirty-eight (5,938) shares of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), subject to the provisions and upon the terms and
conditions herein set forth. The Exercise Price and the number of Warrant Shares
are subject to adjustment from time to time as provided in subsection 1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) This Warrant may be exercised to purchase all of the
underlying shares set forth above upon satisfaction of the conditions
set forth in ANNEX A to this Warrant or (i) if the conditions set forth
in clause (i) of this subsection 1.1(a) are not satisfied, March 16,
2009 if at such time Mr. Cooper is an employee of the Company (each of
the events
1
<PAGE>
set forth in clauses (i) and (ii) hereof, an "Exercise Date" and
collectively from time to time, the "Exercise Dates"). The Company
shall complete its calculations with respect to the satisfaction of the
conditions set forth on ANNEX A on or before May 15, 2001. In the event
that the Company determines that such conditions have been satisfied,
this Warrant shall be fully exercisable to and including 5:00 p.m. New
York City time on March 16, 2010 (the "Expiration Date"); in the event
that the Company determines that such conditions have not been
satisfied, this Warrant shall only be exercisable in accordance with
subsection 1.1(a)(ii) above.
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be
made by the Warrantholder directly or by a designated broker
pursuant to the broker-assisted cashless exercise program
instituted by the Company, subject to subsection 1.4 herein)
and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
2
<PAGE>
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATIONS ON EXERCISE.
(a) If this Warrant is not exercised prior to 5:00 P.M.
on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant
issued pursuant to subsection 1.1, shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall
cease. In the event of Mr. Cooper's death prior to the Expiration Date,
this Warrant may be exercised only to the extent then exercisable by
Mr. Cooper's legal representative through the Closing Date. This
Warrant shall not be exercisable, and no Warrant Shares shall be issued
hereunder, prior to 9:00 A.M. New York City time on the first Exercise
Date.
(b) Upon termination of Mr. Cooper's employment with the
Company, this Warrant may be exercised only to the extent then
exercisable through and including the Expiration Date.
(c) In the event of Leo Cooper's death prior to the
Expiration Date, this Warrant may be exercised to the extent then
exercisable by Mr. Cooper's legal representative through the Expiration
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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any
3
<PAGE>
manner transferred or disposed of, in whole or in part, except in
compliance with applicable United States federal and state securities
laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.5 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 below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.6 RESERVATION AND LISTING OF SHARES, ETC. All Warrant Shares
which are issued upon the exercise of the rights represented by this Warrant
shall, upon issuance and payment of the Exercise Price, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof other than
taxes in respect of any transfer occurring contemporaneously with such issue.
During the period within which this Warrant may be exercised, the Company shall
at all times have authorized and reserved, and keep available free from
preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of this Warrant, and shall at its expense use its best efforts to
procure such listing thereof (subject to official notice of issuance) as then
may be required on all stock exchanges on which the Common Stock is then listed
or on the Nasdaq National Market. The Company shall, from time to time, take all
such action as may be required to assure that the par value per share of the
Warrant Shares is at all times equal to or less than the then effective Exercise
Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.4 or 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
4
<PAGE>
mutilation, upon surrender and cancellation of this Warrant, the Company will
execute and deliver a new Warrant of like tenor. The term "Warrant" as used
herein includes any Warrants issued in substitution or exchange of this Warrant.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.9) or rights, options or warrants,
5
<PAGE>
or convertible or exchangeable securities containing the right
to subscribe for or purchase shares of Common Stock,
appropriate adjustments shall be made to the number of Warrant
Shares purchasable upon the exercise of the Warrant and/or the
Exercise Price in order to preserve the relative rights and
interests of the Warrantholders, such adjustments to be made
by the good faith determination of the Board of Directors of
the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall be made during the term of this Warrant or
upon the exercise of this Warrant. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 5. The provisions of this Section 5 shall apply similarly to
successive consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing
6
<PAGE>
for its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
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:
7
<PAGE>
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
7.9 RIGHTS OF THE HOLDER. The Warrantholder shall not, solely by
virtue of this Warrant, be entitled to any rights of a stockholder of the
Company, either at law or in equity.
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.
8
<PAGE>
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: March 16, 2000
9
<PAGE>
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 _________________________
10
<PAGE>
ANNEX A
11
<PAGE>
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED AND THE TERMS
AND CONDITIONS HEREOF. THE HOLDER OF THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF ARE SUBJECT TO THE RESTRICTIONS HEREIN SET FORTH.
VOID AFTER 5:00 P.M. NEW YORK CITY TIME, MARCH 16, 2010.
****************************************
Number 54
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 C. STUART
HAWORTH or permitted registered assigns (the "Warrantholder" or
"Warrantholders"), the right to subscribe for and purchase from the Company, at
$26.375 per share (the "Exercise Price"), 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 subsection 1.9.
1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE;
PAYMENT OF TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) (i) In the event that the Company determines that
during calendar year 2000 the Segment SBU EBT (as defined below) of the
Legal Consulting business segment of the FYI Legal strategic business
unit ("SBU") is equal to or greater than $7,697,797, this Warrant may
be exercised to purchase (A) 20% of the underlying shares
1
<PAGE>
from and after 9:00 A.M. New York City time on the business day next
following such determination (the "First Exercise Date"); (B) 20% of
the underlying shares on March 16, 2002 (the "Second Exercise
Date"); (C) 20% of the underlying shares on March 16, 2003 (the
"Third Exercise Date"); (D) 20% of the underlying shares on March
16, 2004 (the "Fourth Exercise Date"); and (E) 20% of the underlying
shares on March 16, 2005 (the "Fifth Exercise Date"); and (ii) if
the condition set forth in clause (i) of this subsection 1.1(a) is
not satisfied, this Warrant may be exercised to purchase all of the
underlying shares set forth above from and after March 16, 2009 if
at such time Mr. Haworth is an employee of the Company (each of the
events set forth in clauses (i) and (ii) hereof, an "Exercise Date"
and collectively from time to time, the "Exercise Dates"). For
purposes of this Warrant, "Segment SBU EBT" shall mean the earnings
before taxes of the Legal Consulting business segment within the FYI
Legal SBU at the date of this Warrant, in each event based upon
generally accepted accounting principles consistently applied and
including all operating business expenses and interest on capital
expenditures in excess of associated goodwill and excluding any pro
forma amortization of goodwill associated with the purchase proceeds
based on a thirty (30) year amortization schedule. The Company shall
complete its calculation of Segment SBU EBT for calendar year 2000
on or before May 15, 2001. In the event that Segment SBU EBT for
calendar year 2000 is determined to be $7,697,797 or greater, this
Warrant shall become exercisable in the increments set forth in
subsection 1.1(a)(i) above to and including 5:00 p.m. New York City
time on March 16, 2010 (the "Expiration Date"); in the event that
Segment SBU EBT for calendar year 2000 is determined to be less than
$7,697,797, this Warrant shall only be exercisable in accordance
with subsection 1.1(a)(ii) above.
(b) The rights represented by this Warrant may be
exercised by the Warrantholder of record, in whole, or from time to
time in part, by:
(i) Surrender of this Warrant, accompanied by
either the Exercise Form annexed hereto, or if the
Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the
Company, an applicable exercise form provided by the Company
(the "Exercise Form") duly executed by the Warrantholder of
record and specifying the number of Warrant Shares to be
purchased, to the Company at the office of the Company located
at 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. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day),
(ii) Delivery of payment to the Company in cash
or by certified or official bank check in New York Clearing
House Funds, of the Exercise Price for
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<PAGE>
the number of Warrant Shares specified in the Exercise Form
(such payment may be made by the Warrantholder directly or by
a designated broker pursuant to the broker-assisted cashless
exercise program instituted by the Company, subject to
subsection 1.4 herein) and
(iii) Such documentation as to the identity and
authority of the Warrantholder as the Company may reasonably
request.
Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares
as of the close of business on the date on which this Warrant shall
have been surrendered and payment made for the Warrant Shares as
aforesaid. Certificates for the Warrant Shares specified in the
Exercise Form shall be delivered to the Warrantholder (or designated
broker, as the case may be) as promptly as practicable, and in any
event within 10 business days, thereafter. The stock certificates so
delivered shall be in denominations of at least one thousand (1,000)
shares each or such other denomination as may be specified by the
Warrantholder and agreed upon by the Company, and shall be issued in
the name of the Warrantholder or, if permitted by subsection 1.4 and in
accordance with the provisions thereof, such other name as shall be
designated in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of
the certificates for the Warrant Shares, deliver to the Warrantholder
(or designated broker, as the case may be) a new Warrant evidencing the
rights to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant
Shares issuable on the exercise of this Warrant for any cash dividends
paid or payable to holders of record of Common Stock prior to the date
as of which the Warrantholder shall be deemed to be the record holder
of such Warrant Shares.
1.2 LIMITATIONS ON EXERCISE.
(a) If this Warrant is not exercised prior to 5:00 P.M.
on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant
issued pursuant to subsection 1.1, shall cease to be exercisable and
shall become void and all rights of the Warrantholder hereunder shall
cease. In the event of Mr. Haworth's death prior to the Expiration
Date, this Warrant may be exercised only to the extent then exercisable
by Mr. Haworth's legal representative through the Expiration Date. This
Warrant shall not be exercisable, and no Warrant Shares shall be issued
hereunder, prior to 9:00 A.M. New York City time on the first Exercise
Date.
(b) Upon termination of Mr. Haworth's employment with the
Company, this Warrant may be exercised only to the extent then
exercisable through and including the Expiration Date.
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(c) In the event of C. Stuart Haworth's death prior to
the Expiration Date, this Warrant may be exercised to the extent then
exercisable by Mr. Haworth's legal representative through the
Expiration 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.
1.4 TRANSFER RESTRICTION AND LEGEND.
(a) Without limiting the generality of the foregoing,
neither this Warrant nor any of the Warrant Shares, nor any interest or
participation in either, may be in any manner transferred or disposed
of, in whole or in part, except in compliance with applicable United
States federal and state securities laws.
(b) Each certificate for Warrant Shares and any Warrant
issued at any time in exchange or substitution for any Warrant bearing
such a legend shall bear a legend similar in effect to the foregoing
paragraph unless, in the opinion of counsel for the Company, the
Warrant and the Warrant Shares need no longer be subject to the
restriction contained herein. The provisions of this subsection 1.4
shall be binding upon all subsequent holders of this Warrant and the
Warrant Shares, if any. Warrant Shares transferred to the public as
expressly permitted by, and in accordance with, the provisions of this
Warrant shall thereafter cease to be deemed to be "Warrant Shares" for
purposes hereof.
1.5 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 below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, and, if permitted by subsection
1.4(b) and in accordance with the provisions thereof, the Warrants may be
transferred of record to a name other than that of the Warrantholder of record;
PROVIDED, HOWEVER, that the Warrantholder shall be required to pay any and all
transfer taxes with respect thereto.
1.6 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
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Common Stock to provide for the exercise of this Warrant, and shall at its
expense use its best efforts to procure such listing thereof (subject to
official notice of issuance) as then may be required on all stock exchanges on
which the Common Stock is then listed or on the Nasdaq National Market. The
Company shall, from time to time, take all such action as may be required to
assure that the par value per share of the Warrant Shares is at all times equal
to or less than the then effective Exercise Price.
1.7 EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. If permitted by
subsections 1.4 or 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.
1.8 OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in subsections 1.1 and 1.4 or in Section 3.
1.9 CERTAIN ADJUSTMENTS. The Exercise Price at which Warrant
Shares may be purchased hereunder, and the number of Warrant Shares to be
purchased upon exercise hereof, are subject to change or adjustment as follows:
The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
surviving corporation), the number of Warrant Shares purchasable upon
exercise of this Warrant shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto.
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An adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) In case the Company shall:
(i) Issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase
shares of Common Stock at a price per share which is lower at
the record date for the determination of stockholders entitled
to receive such rights, options or warrants than the then
current market price per share of Common Stock, or
(ii) Distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of
consolidated earnings or earned surplus and dividends or
distributions referred to in paragraph (a) of this subsection
1.9) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, appropriate adjustments
shall be made to the number of Warrant Shares purchasable upon
the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the
Warrantholders, such adjustments to be made by the good faith
determination of the Board of Directors of the Company.
2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount, consistent with applicable law, deemed appropriate
by the Board of Directors of the Company.
3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
4. NO ADJUSTMENT FOR CASH DIVIDENDS. No adjustment in respect of
any cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION,
ETC. In case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all of the property of the Company, the
Company or such successor or purchasing corporation, as the case may be, shall
execute with the Warrantholders an agreement that the Warrantholders shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of this Warrant the kind and
amount of shares and other securities and property which such holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had this Warrant been exercised
immediately prior to such action; PROVIDED, HOWEVER, that no adjustment in
respect of cash dividends, interest or other income on or from such shares or
other securities and property shall
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be made during the term of this Warrant or upon the exercise of this Warrant.
Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 5.
The provisions of this Section 5 shall apply similarly to successive
consolidations, mergers, sales, transfers or leases.
6. REGISTRATION RIGHTS. Not later than January 31, 2001, the
Company shall file a registration statement covering the Warrant Shares on a
Form S-8, which registration statement shall be effective upon the filing
thereof. The Company shall use its best efforts to keep such Form S-8 current
and effective until the earlier of the Expiration Date or the date this Warrant
has been exercised in full.
The Company shall have sole control in connection with the preparation,
filing, amending and supplementing of any registration statement, including the
right to withdraw the same or delay the effectiveness thereof when, in the sole
judgment of the Board of Directors of the Company, the pendency of such
registration statement or the effectiveness thereof would impose an undue burden
upon the ability of the Company to proceed with any other material financing for
its own account or any material corporate transaction, including, but not
limited to, a reorganization, recapitalization, merger, consolidation or
material acquisition of the securities or assets of another firm or corporation;
and the Company shall be required to file a new registration statement or to
proceed with such actions as reasonably may be required to cause the
registration statement to become effective within a reasonable time after the
consummation of the event or transaction which required such withdrawal or
delay.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Warrant constitutes the entire
agreement between the Company and the Warrantholder with respect to this Warrant
and the Warrant Shares.
7.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company, the Warrantholder and holders
of Warrant Shares and their respective heirs, legal representatives, successors
and assigns. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company, the Warrantholders and
holders of Warrant Shares, or their respective heirs, legal representatives,
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Warrant or the Warrant Shares.
7.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument in writing signed by the Company and
Warrantholders that hold Warrants entitling them to purchase at least 50% of the
Warrant Shares. The Company, any Warrantholder or holders of Warrant Shares may,
by an instrument in writing, waive compliance by the other party with any term
or provision of this Warrant on the part of such other party hereto to be
performed or complied with. The waiver by any such party of a breach of any term
or provision of this Warrant shall not be construed as a waiver of any
subsequent breach.
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7.4 SECTION AND OTHER HEADINGS. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
7.5 FURTHER ASSURANCES. Each of the Company, the Warrantholders
and holders of Warrant Shares shall do and perform all such further acts and
things and execute and deliver all such other certificates, instruments and/or
documents (including without limitation, such proxies and/or powers of attorney
as may be necessary or appropriate) as any party hereto may, at any time and
from time to time, reasonably request in connection with the performance of any
of the provisions of this Warrant.
7.6 NOTICES. All demands, requests, notices and other
communications required or permitted to be given under this Warrant shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by United States certified or registered first class mail, postage prepaid,
to the parties hereto at the following addresses or at such other address as any
party hereto shall hereafter specify by notice to the other party hereto:
(a) If to the Company, addressed to:
F.Y.I. Incorporated
3232 McKinney Avenue
Suite 900
Dallas, Texas 75204
Attention: Margot T. Lebenberg
(b) If to any Warrantholder or holder of Warrant Shares,
addressed to the address of such person then appearing on the books of
the Company.
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received on the
date of personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 SEPARABILITY. Any term or provision of this Warrant that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable any other term or provision of this Warrant
or affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
7.8 FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of subsection 5.1) of a share of such stock as of the date of
such exercise.
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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: March 16, 2000
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EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby irrevocably
elects to exercise the right, represented by this Warrant, to purchase
__________ of the Warrant Shares and herewith tenders payment for such Warrant
Shares to the order of F.Y.I. INCORPORATED, in the amount of $_______ in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for such Warrant Shares be registered in the name of
_________________________________ and that such certificate be delivered to
_________________________ whose address is ____________________________________.
Date _________________ Signature _________________________
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April 25, 2000
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 361,087
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 connection with this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the Amended and
Restated Certificate of Incorporation of the Company, the Amended and Restated
By-Laws of the Company, the Warrants and 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:
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 opinion 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 (the "DGCL"), the applicable provisions
of the Delaware Constitution and the reported decisions interpreting the DGCL.
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/ 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 11, 2000, included in F.Y.I. Incorporated's Annual Report on Form
10-K for the year ended December 31, 1999, and to all references to our firm
included in this Registration Statement.
/s/ARTHUR ANDERSEN LLP
Dallas, Texas
April 24, 2000
