EXHIBIT 4.23
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 24, ▇▇▇▇
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▇▇. ▇▇▇▇
WARRANT
to
PURCHASE COMMON STOCK
of
F.Y.I. INCORPORATED
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This certifies that, for good and valuable consideration, F.Y.I.
Incorporated, a Delaware corporation (the "Company"), grants to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
or permitted registered assigns (the "Warrantholder" or "Warrantholders"), the
right to subscribe for and purchase from the Company, at $30.375 per share (the
"Exercise Price"), six thousand seven hundred (6,700) shares of the Company's
Common Stock, par value $0.01 per share (the "Common Stock"), subject to the
provisions and upon the terms and conditions herein set forth. The Exercise
Price and the number of Warrant Shares are subject to adjustment from time to
time as provided in Section 5.
1. Duration and Exercise of Warrant; Limitation Exercise Payment of
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Taxes.
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1.1. Duration and Exercise of Warrant.
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(a) This Warrant may be exercised as to 100% of the underlying shares at
any time following the date of receipt by the Compensation Committee of the
Board of Directors of the Company's audited financial statements showing the
Company's actual earnings per share for the year ended December 31, 2001
("fiscal 2001"), provided that such earnings are not less than $2.28 per share
(subject to Section 1.1(d)). Subject to Section 1.1(d), in the event the
Company's actual fiscal 2001 earnings are less than $2.28 per share, but at
least $2.23 per share, then this Warrant shall be exercisable as to the
percentage indicated across from the designated earnings per share target set
forth below:
Fiscal 2001 EPS Threshold % of Warrant Exercisable
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$2.23 50%
$2.24 60%
$2.25 70%
$2.26 80%
$2.27 90%
The Company shall use its best efforts to deliver to the Compensation Committee
the audited financial statements showing the Company's actual fiscal 2001
earnings per share by March 5, 2002. However, in any case (and subject to
Section 1.2), this Warrant shall vest as to 100% of the underlying shares on
March 5, 2010. The date this Warrant is first exercisable as to a portion of
the Warrant is hereinafter referred to as the "Exercise Date" for such portion
of the Warrant. The Company shall give prompt notice to the Warrantholder of
the Exercise Date in accordance with Section 7.6. This Warrant expires at 5:00
P.M., New York City time on January 24, 2011 (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 (a)
surrender of this Warrant, accompanied by either the Exercise Form annexed
hereto, or if the Warrantholder decides to exercise the Warrant pursuant to the
broker-assisted cashless exercise program instituted by the Company, an
applicable exercise form provided by the Company (the "Exercise Form") duly
executed by the Warrantholder of record and specifying the number of Warrant
Shares to be purchased, to the Company at the office of the Company located at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (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 applicable Exercise Date but not
later than 5:00 P.M., New York City time, on the
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Expiration Date (or 5:00 P.M., New York City time, on the next succeeding
Business Day, if the Expiration Date is a Nonbusiness Day), (b) delivery of
payment to the Company in cash or by certified or official bank check in New
York Clearing House Funds, of the Exercise Price for the number of Warrant
Shares specified in the Exercise Form (such payment may be made by the
Warrantholder directly or by a designated broker pursuant to the broker-assisted
cashless exercise program instituted by the Company) and (c) such documentation
as to the identity and authority of the Warrantholder as the Company may
reasonably request. Such Warrant Shares shall be deemed by the Company to be
issued to the Warrantholder as the record holder of such Warrant Shares as of
the close of business on the date on which this Warrant shall have been
surrendered and payment made for the Warrant Shares as aforesaid. Certificates
for the Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder (or designated broker, as the case may be) as promptly as
practicable, and in any event within 10 business days, thereafter. The stock
certificates so delivered shall be in denominations of at least 1,000 shares
each or such other denomination as may be specified by the Warrantholder and
agreed upon by the Company, and shall be issued in the name of the Warrantholder
or such other name as shall be designated in the Exercise Form. If this Warrant
shall have been exercised only in part, the Company shall, at the time of
delivery of the certificates for the Warrant Shares, deliver to the
Warrantholder (or designated broker, as the case may be) a new Warrant
evidencing the rights to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant. No
adjustments or payments shall be made on or in respect of Warrant Shares
issuable on the exercise of this Warrant for any cash dividends paid or payable
to holders of record of Common Stock prior to the date as of which the
Warrantholder shall be deemed to be the record holder of such Warrant Shares.
(c) With the consent of the Compensation Committee, and subject at all
times to, and only to the extent, if any, permitted under and in accordance
with, laws and regulations and other binding obligations or provisions
applicable to the Company, the Company may make a loan to the Warrantholder with
respect to the exercise of the Warrant, including the payment by the
Warrantholder of any or all federal, state and local income or other taxes due
in connection with any exercise. The interest on such loan shall be the
Company's cost of money plus an additional 0.5% at the time the loan is made and
such loan shall be made with recourse against the Warrantholder. The
Compensation Committee shall have the full authority to determine any other
terms and provisions of such a loan.
(d) In the event the Company sells one or more of its subsidiaries or
businesses during fiscal 2001, the earnings targets set forth in Section 1.1(a)
would be reduced by the earnings budgeted for such divested businesses or
subsidiaries for the remainder of fiscal 2001 (including a reduction relating to
any associated write down of goodwill, if any) and increased by the actual
earnings attributable to any funds received as a result of such sale, all as
determined by the Compensation Committee.
1.2 Vesting and Exercise. Once vested, this Warrant may be exercised as
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to such vested portion whether or not at the time of such exercise the
Warrantholder is an employee of (or consultant to) the Company (or one or more
of its subsidiaries); however, this Warrant shall
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automatically terminate as to any unvested portion at any such time as the
Warrantholder is no longer employed by (or a consultant to) the Company (or any
of its subsidiaries). If this Warrant is not exercised prior to 5:00 P.M. on the
Expiration Date (or the next succeeding Business Day, if the Expiration Date is
a Nonbusiness Day), this Warrant, or any new Warrant issued pursuant to Section
1.1, shall cease to be exercisable and shall become void and all rights of the
Warrantholder hereunder shall cease. This Warrant shall not be exercisable, and
no Warrant Shares shall be issued hereunder, prior to 9:00 A.M., New York City
time, on the applicable Exercise Date.
1.3 Payment of Taxes. The issuance of certificates for Warrant Shares
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shall be made without charge to the Warrantholder for any stock transfer or
other issuance tax in respect thereto; provided, however, that the Warrantholder
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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 Divisibility of Warrant. This Warrant may be divided into warrants
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representing one Warrant Share or multiples thereof, upon surrender at the
principal office of the Company on any Business Day, without charge to any
Warrantholder, except as provided below. The Warrantholder will be charged for
reasonable out-of-pocket costs incurred by the Company in connection with the
division of this Warrant into Warrants representing fewer than one thousand
(1,000) Warrant Shares. Upon any such division, the Warrants may be transferred
of record to a name other than that of the Warrantholder of record; provided,
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however, that the Warrantholder shall be required to pay any and all transfer
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taxes with respect thereto.
2. Reservation and Listing of Shares, Etc.
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All Warrant Shares which are issued upon the exercise of the rights
represented by this Warrant shall, upon issuance and payment of the Exercise
Price, be validly issued, fully paid and nonassessable and free from all taxes,
liens, security interests, charges and other encumbrances with respect to the
issue thereof other than taxes in respect of any transfer occurring
contemporaneously with such issue. During the period within which this Warrant
may be exercised, the Company shall at all times have authorized and reserved,
and keep available free from preemptive rights, a sufficient number of shares of
Common Stock to provide for the exercise of this Warrant, and shall at its
expense use its best efforts to procure such listing thereof (subject to
official notice of issuance) as then may be required on all stock exchanges on
which the Common Stock is then listed or on the Nasdaq National Market. The
Company shall, from time to time, take all such action as may be required to
assure that the par value per share of the Warrant Shares is at all times equal
to or less than the then effective Exercise Price.
3. Exchange, Loss or Destruction of Warrant.
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If permitted by Section 1.4 and in accordance with the provisions thereof,
upon surrender of this Warrant to the Company with a duly executed instrument of
assignment and funds
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sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant of like tenor in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
The term "Warrant" as used herein includes any Warrants issued in substitution
or exchange of this Warrant.
4. Ownership of Warrant.
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The Company may deem and treat the person in whose name this Warrant is
registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer as provided in Section
1.1 or in Section 3.
5. Certain Adjustments.
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The Exercise Price at which Warrant Shares may be purchased hereunder, and
the number of Warrant Shares to be purchased upon exercise hereof, are subject
to change or adjustment as follows:
5.1 The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common Stock
or make a distribution in shares of Common Stock, (ii) subdivide its outstanding
shares of Common Stock into a greater number of shares of Common Stock, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
of Common Stock or (iv) issue by reclassification of its shares of Common Stock
other securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the surviving
corporation), the number of Warrant Shares purchasable upon exercise of this
Warrant (and the Exercise Price) shall be adjusted so that the Warrantholder
shall be entitled to receive (for the aggregate Exercise Price) the kind and
number of Warrant Shares or other securities of the Company that 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
Section 5.1) or rights, options or warrants, or convertible or
exchangeable securities, containing the right to subscribe for or
purchase shares of Common Stock,
appropriate adjustments shall be made to the number of Warrant Shares
purchasable upon the exercise of the Warrant and/or the Exercise Price in order
to preserve the relative rights and interests of the Warrantholders, such
adjustments to be made by the good faith determination of the Board of Directors
of the Company.
5.2 Voluntary Adjustment by the Company. The Company may, at its option,
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at any time during the term of the Warrants, reduce the then current Exercise
Price to any amount, consistent with applicable law, deemed appropriate by the
Board of Directors of the Company.
5.3 Notice of Adjustment. Whenever the number of Warrant Shares or the
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Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail first class, postage prepaid, to all Warrantholders,
notice of such adjustment.
5.4 No Adjustment for Cash Dividends. No adjustment in respect of any
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cash dividends shall be made during the term of this Warrant or upon the
exercise of this Warrant.
5.5 Preservation of Purchase Rights Upon Merger, Consolidation, etc. In
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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 that 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
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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
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shall provide for adjustments, which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 5. The provisions of
this Section 5.5 shall apply similarly to successive consolidations, mergers,
sales, transfers or leases.
6. Registration Rights of Warrant Shares on Form S-8
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On or prior to January 31, 2002, the Company shall file a registration
statement covering the Warrant Shares on a Form S-8, which registration
statement shall be effective upon the filing thereof. The Company shall use its
best efforts to keep such Form S-8 current and effective until the earlier of
the Expiration Date or the date this Warrant has been exercised in full. The
Company shall use its best efforts to list the Warrant Shares on any securities
exchange (or on the Nasdaq National Market) on which other shares of Common
Stock are listed.
7. Miscellaneous.
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7.1 Entire Agreement. This Warrant constitutes the entire agreement
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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
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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
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except by an instrument in writing signed by the Company and Warrantholders that
hold Warrants entitling them to purchase at least 50% of the Warrant Shares.
The Company, any Warrantholder or holder of Warrant Shares may, by an instrument
in writing, waive compliance by the other party with any term or provision of
this Warrant on the part of such other party hereto to be performed or complied
with. The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
7.4 Section and Other Headings. The section and other headings contained
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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
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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
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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
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▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
(b) if to any Warrantholder or holder of Warrant Shares, addressed to the
address of such person appearing on the books of the Company.
Except as otherwise provided herein, all such demands, requests, notices and
other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third Business Day after the mailing
thereof.
7.7 Separability. Any term or provision of this Warrant that is invalid
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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
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fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Warrantholder an amount in cash equal to such fraction
multiplied by the current market price (as determined as of the date of
exercise, and with reference to the applicable trading market, in accordance
with paragraph (d) of Section 5.1) of a share of such stock as of the date of
such exercise.
7.9 Rights of the Holder. The Warrantholder shall not, solely by virtue
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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
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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
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are available only when at least a specified minimum number of Warrant Shares is
involved, such
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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/ ▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
Dated: January 24, 2001
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EXERCISE FORM
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(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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