Exhibit 99.3
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED IN A TRANSACTION NOT
INVOLVING ANY PUBLIC OFFERING AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SUCH ACT AND LAWS.
FTI Consulting, Inc.
____________________________
STOCK PURCHASE WARRANT
Series A
____________________________
February 4, 2000
1. GRANT. FTI Consulting, Inc., a Maryland corporation (hereinafter, the
Company), for value received hereby grants to ___________________, a ________
corporation or its registered assigns (hereinafter, Holder), or its nominee,
under the terms herein, the right to purchase ________ of the fully paid and
non-assessable shares of the Company's authorized but unissued $.01 par value
common stock (the Common Stock). The Common Stock shares issuable under this
Warrant are sometimes hereinafter referred to as the Warrant Shares. The number
of Warrant Shares stated above is subject to certain anti-dilution and other
adjustments as set out below.
2. INVESTMENT AGREEMENT. This Warrant and three (3) other Series A stock
purchase warrants dated the date hereof, issued by the Company (the Related
Warrants), have been issued under the terms of an Investment and Loan Agreement
among the Company, the Holder and certain other parties, dated this date (the
Investment Agreement). This Warrant and the Related Warrants evidence the
obligation of the Company to issue shares of its Common Stock, in the aggregate,
corresponding to 8.5% of all Common Stock, calculated as of the date of Closing
and subject to reduction under the circumstances set out herein. The Holder is
entitled to the benefits of the Investment Agreement and all of the exhibits
thereto, and reference is made thereto for a description of the rights and
remedies thereunder. Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Investment Agreement.
3. TERM. The right to exercise this Warrant shall expire on the tenth (10th)
anniversary of the date of Closing.
4. EXERCISE PRICE. The exercise price of this Warrant shall initially be
Four and Seven Sixteenths Dollars ($4.4375) per share, with such price being
subject to adjustment from time-to-time as provided herein.
5. DEBENTURE REPAYMENT OR WARRANT EXERCISE PRIOR TO FEBRUARY 3, 2004.
(a) ADJUSTMENTS FOR EARLY REPAYMENT OF THE DEBENTURES. If the Company
repays in full all of the Loan prior to February 3, 2004, the number of Warrant
Shares then in effect shall, upon such repayment, be reduced to equal the
product of the number of Warrant Shares in effect immediately prior to such
repayment, multiplied by the Applicable Percentage
(expressed as a decimal fraction), corresponding to the date of such repayment
in the table below.
Applicable
Repayment Date: Percentage
- --------------- ----------
Prior to 02/03/02 70.59%
2/03/02 through 02/02/03, inclusive 82.35%
02/03/03 through 02/02/04, inclusive 94.12%
02/03/04 and later 100.00%
(b) WARRANT EXERCISE DURING EARLY REPAYMENT PERIOD. If this Warrant is
exercised before the earlier of (i) February 3, 2004, or (ii) the full and
indefeasable repayment of the Loan, the number of Warrant Shares issuable
hereunder shall equal the product of the number of Warrant Shares in effect
immediately prior to such exercise, multiplied by the Applicable Percentage
corresponding to the date of such exercise in the table above, and the Company
shall issue and deliver to the Holder (in addition to such Warrant Shares) a
replacement stock purchase warrant. If such replacement warrant is exercised
before the earlier of February 3, 2004 or the full and indefeasible repayment of
the Loan, it then will only be exercisable for such additional shares of Common
Stock (if any) which the Holder would have been entitled to receive under this
Warrant if it had been exercised on the same date as the exercise of such
replacement warrant, and the Company shall issue and deliver to the Holder (in
addition to such Warrant Shares) another replacement stock purchase warrant;
otherwise such replacement warrants shall have the same terms as this Warrant,
and shall be included within the definition of Warrant in the Agreement. If such
replacement warrant is exercised after February 3, 2004 or the full and
indefeasible repayment of the Loan, it then will be exercisable for such
additional shares of Common Stock (if any) which the Holder would have been
entitled to receive under this Warrant if it had been exercised on the same date
as the exercise of such replacement warrant. All shares of Common Stock issuable
under such replacement warrant shall be included within the definition of
Warrant Shares for all purposes herein.
6. ANTI-DILUTION AND OTHER ADJUSTMENTS.
(a) ISSUANCE OF ADDITIONAL STOCK; DECREASE IN EXERCISE PRICE. Whenever
the Company issues or sells any Additional Stock (as hereinafter defined) for a
consideration per share less than the Exercise Price in effect immediately prior
to such issuance or sale, upon such issuance or sale the Exercise Price shall
decline to equal the quotient obtained by dividing the sum of (i) the product of
the number of shares of Common Stock issued and outstanding (or deemed to be
issued, as hereinafter provided) immediately prior to such issuance or sale,
multiplied by the Exercise Price in effect immediately prior to such issuance or
sale, plus (ii) the
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net consideration received for such issuance or sale, as the dividend, by the
number of shares of Common Stock issued and outstanding (or deemed to be issued)
immediately after such issuance or sale, as the divisor. The foregoing is
represented by the equation as follows:
N = (AO+C) / B
wherein
N = the Exercise Price to be in effect immediately after the subject
issuance or sale;
O = the Exercise Price as in effect immediately prior to such issuance or
sale;
A = the number of shares of Common Stock issued and outstanding (or deemed
to be issued) immediately before such issuance or sale;
B = the number of shares of Common Stock issued and outstanding (or deemed
to be issued) immediately after such issuance or sale;
C = the net consideration received for such issuance or sale.
(b) INCREASE IN NUMBER OF WARRANT SHARES; LIMIT ON INCREASE. Whenever
the Exercise Price declines according to the equation set out above, the number
of Warrant Shares shall increase to equal the quotient obtained by dividing (i)
the product of the initial Exercise Price and the initial number of Warrant
Shares by (ii) the reduced Exercise Price as the divisor. Notwithstanding the
foregoing, the aggregate number of Warrant Shares issuable at any time hereunder
and under each of the Related Warrants shall never be increased above 19.9% of
the number of Warrant Shares of the Company's Common Stock actually outstanding
at closing, subject in all cases to adjustment for stock splits, reverse splits
and stock dividends.
(c) ADDITIONAL STOCK. For purposes hereof, Additional Stock shall mean
any Common Stock issued or deemed, according to subparagraphs (d) and (e)
hereof, to be issued after the date hereof, or Common Stock issuable upon the
exercise of any debt or equity securities convertible into shares of Common
Stock, other than (i) Common Stock issued upon the exercise of this Warrant or
the Related Warrants, (ii) Common Stock issued by the Company as a stock
dividend on, or upon the subdivision or combination of, the outstanding shares
of Common Stock for which adjustment is made pursuant to paragraph 6(i) hereof,
and (iii) up to 847,850 shares of Common Stock issued after the date hereof to
management, directors, consultants or employees of the Company pursuant to the
Company's 1997 Stock Option Plan and up to 254,907 shares of Common Stock issued
after the date hereof pursuant to the Company's 1997 Stock Purchase
Plan(collectively, "Plan Shares"), except for any Plan Shares with respect to
which the exercise price shall after the original date of issuance of the
relevant option or other right to purchase be reduced.
(d) OPTIONS AND WARRANTS. If the Company shall at any time other than
pursuant to this Warrant or the Related Warrants, issue or grant any options or
rights to subscribe for or to
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purchase Common Stock, all shares of Common Stock which the holders of such
options or rights shall be entitled to subscribe for or to purchase thereunder
shall be deemed to be issued as of the date of the issuing or granting of such
options or rights; and the minimum aggregate consideration specified in such
options or rights for the shares covered thereby, plus the cash consideration,
if any, received by the Company for the issuance of such options or rights,
shall be deemed to be the consideration actually received by the Company for the
issuance of such shares; after any adjustment to the number of Warrant Shares,
the Exercise Price upon the issuance or grant of any such options or rights, no
further such adjustment shall be made upon the actual issuance of Common Stock
upon exercise thereof.
(e) CONVERTIBLE SECURITIES. If the Company shall at any time other than
pursuant to this Warrant issue any stock or obligations directly or indirectly
convertible into or exchangeable for Common Stock, then such issuance shall be
deemed to be an issuance (as of the date of issue of such stock or obligations)
of the total maximum number of shares of Common Stock necessary to effect the
exchange or conversion of all such stock or obligations. The amount received or
receivable by the Company in consideration for the issuance of such stock or
obligations (deducting therefrom any commissions or expenses paid or incurred by
the Company for any underwriting of, or otherwise in connection with, such
issuance), plus the minimum aggregate amount of premiums, if any, payable to the
Company upon exchange or conversion, shall be deemed to be the consideration
actually received by the Company for such Common Stock; after any adjustment to
the number of Warrant Shares, the Exercise Price upon the issuance of any such
stock or obligation, no further such adjustment shall be made upon the actual
issuance of Common Stock upon the conversion or exchange of such stock or
obligations.
(f) CALCULATION OF CONSIDERATION. In the case of an issuance of Common
Stock for cash, the consideration received by the Company therefor shall be
deemed to be the net proceeds received for such shares, deducting therefrom any
commissions or expenses paid or incurred by the Company for any underwriting of,
or otherwise in connection with, the issue of such shares; provided, however,
that in any such case where the shares of Stock so issued are part of a unit or
combination of securities of the Company consisting of one or more shares of
Common Stock and other securities of the Company, if the amount of the cash
consideration received by the Company for the Stock so issued is not
determinable at the time of such issuance, such amount shall be deemed to be
such portion of the total cash consideration received by the Company for such
units or combinations as reasonably determined in good faith by the Company's
Board of Directors, regardless of the accounting treatment thereof by the
Company.
(g) NON-CASH CONSIDERATION. In the case of an issuance (other than as a
dividend of other distribution on any Common Stock or upon conversion or
exchange of other securities of the Company) of shares of Additional Stock for a
consideration part or all of which shall be other than cash, the amount of such
consideration other than cash shall for purposes of this Warrant be the fair
market value of such consideration as reasonably determined in good faith by the
Company's Board of Directors, regardless of the accounting treatment thereof by
the Company.
(h) RESALE OF TREASURY STOCK. The sale or other disposition of any
shares of
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Common Stock of the Company or other securities held in the treasury of the
Company today, or of any securities resulting from any reclassification or
reclassifications of such shares or other securities which were effected while
they were held in the treasury of the Company, shall be deemed an issuance
thereof; provided, however, that if any such share or other security is sold or
disposed of and subsequently re-acquired by the Company, no future sale or other
disposition thereof shall be deemed an issuance thereof.
(i) STOCK SPLIT OR DIVIDEND. In case the shares of Common Stock at any
time outstanding shall be subdivided into a greater or combined into a lesser
number of shares of Common Stock, by stock-split, reverse split or otherwise, or
in case shares of Common Stock shall be issued as a stock dividend, the number
of Warrant Shares, and the Exercise Price and the numbers of Plan Shares
excluded from the definition of Additional Stock pursuant to clause (iii) of
subparagraph (c) above, shall each be increased or decreased, as applicable, to
the amounts which shall bear the same relation to the number of Warrant Shares,
the Exercise Price and the number of Plan Shares in effect immediately prior to
such subdivision, combination or stock dividend, as the total number of shares
of Common Stock issued and outstanding (or deemed issued) immediately prior to
such subdivision, combination or stock dividend shall bear to the total number
of shares of Common Stock issued and outstanding (or deemed issued) immediately
after such subdivision, combination or stock dividend; an adjustment pursuant to
this subparagraph shall become effective immediately after the effective date of
such subdivision, combination or stock dividend, retroactive to the record date
(if any) for such subdivision, combination or stock dividend.
(j) ADJUSTMENT FOR INITIAL ERRORS. The number of Warrant Shares
specified in paragraph 1 above, was calculated upon the Company's representation
of the amount of outstanding Common Stock on a "Partially Diluted Basis" as of
Closing, meaning that the full exercise of this Warrant and all Related Warrants
is intended to result in the holders thereof receiving Common Stock constituting
a particular percentage of the Company's equity securities, calculated with
reference to (i) all shares of capital stock outstanding immediately following
the Closing, (ii) all shares issuable upon conversion of convertible debt
instruments outstanding immediately following the Closing, (iii) one half of the
shares issuable upon the exercise of options issued to Messieurs Policano and
Manzo in connection with the Acquisition, (iv) all other options, warrants,
other rights to purchase the Company's capital stock, and all other common stock
equivalents, outstanding immediately following the Closing, the consideration
for the issuance or sale of which is less than $__________. If for any reason it
shall hereafter be determined that such representation is incorrect and the
actual amount of such Common Stock corresponding to such percentage is greater
or less than as specified in paragraph 1, then the Company or the Holder
(whichever shall discover such error) shall notify the other of such
determination and the Company shall forthwith reissue this Warrant, with an
appropriate proportional adjustment in the number of Warrant Shares to be
effective from the date hereof.
(k) MERGER. In case of any capital reorganization, or any
reclassification of the Common Stock of the Company, or in case of any
consolidation of the Company with or the merger of the Company into any other
entity (other than a consolidation or merger in which the Company is the
surviving entity) or in case of the sale of all or substantially all the
properties and assets of the Company to any other entity, this Warrant shall
after such reorganization,
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reclassification, consolidation, merger or sale be exercisable upon the terms
and conditions specified herein, for the number of shares of stock or other
securities or property of the Company, or of the other entity resulting from
such consolidation or surviving such merger or to which such sale shall be made,
as the case may be, which the holder of this Warrant would have been entitled to
receive, under the terms of such reorganization, reclassification,
consolidation, merger or sale, if this Warrant had been exercised in full prior
to such reorganization, reclassification, consolidation, merger or sale. In any
such case, if necessary, the provision set forth in this Warrant with respect to
the rights and interests thereafter of the Holder shall be appropriately
adjusted so as to be applicable, as nearly as may reasonably be, to any shares
of stock or other securities or property thereafter deliverable on the exercise
of this Warrant. The subdivision or combination of shares of Common Stock at any
time outstanding into a greater or lesser number of shares of Common Stock shall
not be deemed to be a reclassification of the Common Stock of the Company for
the purposes of this subparagraph. The Company shall not effect any such
consolidation, merger, or sale, unless prior to or simultaneously with the
consummation thereof the surviving entity (if other than the Company) resulting
from such consolidation or merger or the entity purchasing such assets, shall
assume, by written agreement executed and delivered to the Company, the
obligation to deliver to the Holder such shares of stock, securities or assets
to which in accordance with the foregoing provisions, such Holder may be
entitled, as well as any other obligations arising under this Warrant.
(l) DIVIDENDS IN KIND. If prior to the exercise hereof the Company shall
declare a dividend upon Common Stock payable other than from earnings or earned
surplus or payable other than in shares of Common Stock or stock or obligations
directly or indirectly convertible into or exchangeable for Common Stock, the
holder of this Warrant shall, upon exercise hereof in whole or in part, be
entitled, in addition to the shares of Common Stock deliverable upon such
exercise, to the cash, stock or other securities or property which Holder would
have received as dividends if continuously since the date hereof such Holder (i)
had been the holder of record of the Common Stock deliverable upon such
exercise, and (ii) had retained all dividends in stock or other securities
(other than shares of Common Stock or such convertible or exchangeable stock or
obligations) paid or payable in respect of such Common Stock or in respect of
any such stock or other securities so paid or payable as such dividends. For
purposes of this subparagraph, a dividend payable other than in cash shall be
considered to be payable from earnings or earned surplus only to the extent that
such earnings or earned surplus shall be charged in an amount equal to the fair
value of such dividend as reasonably determined in good faith by the Company's
Board of Directors.
(m) ADJUSTMENTS TO NUMBERS OF OTHER SECURITIES. If as a result of any
provision of this Warrant the Holder shall become entitled to acquire any
securities of the Company other than or in addition to Common Stock, the number
or amount of such other securities to which the Holder is entitled shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions applicable to the number of Warrant
Shares, and the provisions of this paragraph with respect thereto shall apply as
nearly as may be practicable to such other securities.
(n) DE MINIMIS. Anything in this paragraph to the contrary
notwithstanding, no adjustment shall be made hereunder in any case where the
increase in the number of Warrant
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Shares would be less than 1 share of Common Stock; but in such case any
adjustment that would otherwise be made shall be delayed and the adjustment
shall be made only after the next issuance or deemed issuance of Additional
Stock which, together with any and all such issuances, shall entitle Holder to
receive at least one (1) whole additional share of such stock.
(o) CHANGES TO OPTIONS AND CONVERTIBLE SECURITIES. Upon any change to
the consideration specified in any option or right described in subparagraph
(d), above for the Common Stock issuable thereunder, or to the rate of
conversion or exchange specified in any stock or obligation described in
subparagraph (e) above, in any case where the issuance or grant thereof had
previously been the basis for an adjustment of the Exercise Price and number of
Warrant Shares, the Exercise Price and number of Warrant Shares then in effect
shall forthwith be readjusted to the Exercise Price and number of Warrant Shares
which would have been in effect if the adjustments made upon the original
issuance or grant thereof had been made on the basis of such consideration or
rate as so changed.
(p) EXPIRATION OF OPTIONS; RETIREMENT OF CONVERTIBLE SECURITIES. Upon
the expiration or lapse of options or rights described in subparagraph (d) above
in any case where the issuance or grant thereof had previously been the basis
for an adjustment of the Exercise Price and number of Warrant Shares, the
Exercise Price and number of Warrant Shares then in effect shall forthwith be
readjusted to the Exercise Price and number of Warrant Shares which would have
been in effect if the adjustments made upon the original issuance or grant of
such options or rights had excluded from the calculation of Common Stock issued
and outstanding (or deemed issued) immediately after such issuance or grant, all
Common Stock which the holders of such expired or lapsed options or rights had
been entitled to acquire thereunder, and had excluded from the calculation of
consideration deemed to have been received by the Company, the consideration
specified in such options or rights for the Common Stock covered thereby. Upon
the retirement without conversion or exchange of obligations described in
subparagraph (e) above in any case where the issuance thereof had previously
been the basis for an adjustment of the Exercise Price and number of Warrant
Shares, the Exercise Price and number of Warrant Shares then in effect shall
forthwith be readjusted to the Exercise Price and number of Warrant Shares which
would have been in effect if the adjustments made upon the original issuance of
such obligations had excluded from the calculation of Common Stock issued and
outstanding (or deemed issued) immediately after such issuance, all Common Stock
which the holders of such retired obligations had been entitled to acquire
thereunder, and had excluded from the calculation of consideration deemed to
have been received by the Company, all consideration deemed, by the terms of
subparagraph (f), to have been received for such retired obligations.
7. COVENANTS AS TO PAR VALUE, AUTHORITY, PREEMPTIVE RIGHTS AND CHARGES. If
at any time the per share exercise price of this Warrant shall be less than the
par value of one share of Common Stock, the Company shall take such action as
shall be necessary to reduce such par value to an amount less than the per share
exercise price of this Warrant. The Company shall take such action as shall be
necessary to maintain the authority to issue validly, upon exercise hereof
according to the terms herein, the number of shares of Common Stock provided
herein, and shall cause such shares, upon payment of the Exercise Price, to be
fully paid, free of preemptive rights and free from all taxes, liens, security
interests and charges with respect to the issuance thereof.
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8. NOTICE OF STOCK SALES AND OTHER ADJUSTMENTS. Whenever there is an
issuance or sale of Additional Stock, the Company shall promptly place on file
at the Company's principal office a certificate signed by its Chief Financial
Officer stating the per-share price applicable to the transaction, a detailed
calculation of such price, the number of shares of Common Stock sold or issued,
the consideration received, and all fees and expenses incurred, and further
describing the transaction in detail and the adjustments (if any) to the
Exercise Price and the number of Warrant Shares resulting therefrom; and cause a
copy of such certificate to be sent to the Holder. Whenever the number of
Warrant Shares or the Exercise Price shall change other than upon the issuance
of Additional Stock, the Company shall promptly notify the Holder in writing of
such change and deliver to Holder a statement setting forth the number of
Warrant Shares and the Exercise Price after such adjustment(s), and a brief
statement of the facts requiring such adjustment(s) and the computation by which
such adjustment(s) was made.
9. EXERCISE PROCEDURE.
(a) UNCONDITIONAL SUBSCRIPTION. This Warrant may be exercised in whole
or from time-to-time in part by presenting it and tendering the aggregate
Exercise Price to the Company at its address specified in the Investment
Agreement in legal tender or by the U.S. Federal Reserve wire system, by bank's,
cashier's or certified check or by the notice described in paragraph 10 below,
along with written subscription substantially in the form of Exhibit 9.00
hereof. The date on which this Warrant is thus presented, accompanied by tender
or payment as hereinbefore or hereinafter provided, is referred to herein as the
Exercise Date. In the case of any partial exercise hereof, each respective date
of such presentment and tender or payment shall be the Exercise Date with
respect to the relevant number of Warrant Shares. The Company shall on each
Exercise Date at its expense (including the payment of issue taxes), issue and
deliver the proper number of shares of Common Stock, and such shares shall be
deemed validly issued for all purposes as of the opening of business on the
relevant Exercise Date regardless of any delay in the actual issuance.
(b) CONDITIONAL EXERCISE. This Warrant may also be exercised in whole or
from time-to-time in part conditionally in contemplation of the future
consummation of one or more transactions, by presenting it and tendering the
aggregate Exercise Price in the manner specified in subparagraph (a) above,
along with a notice clearly stating the conditional nature of the exercise,
specifying the conditions precedent to the exercise in reasonable detail and the
date after which the exercise shall be deemed withdrawn if such conditions
remain unsatisfied, and otherwise containing the information called for in
Exhibit 9.00. Upon such presentment, tender and notice, if the specified
conditions are satisfied within the specified period without prior revocation of
the exercise by Holder, the Company shall forthwith issue and deliver the proper
number of shares of Common Stock in the manner described above. In such case,
the date on which the last remaining condition was met shall be referred to
herein as the Exercise Date, and such shares shall be deemed validly issued for
all purposes as of the opening of business on such exercise date, regardless of
any delay in the actual issuance. If, on the other hand, after any such
presentment, tender and notice, any condition is unsatisfied on the specified
date, or if the Holder revokes such exercise in writing prior to the
satisfaction of all conditions, the Company shall forthwith return this Warrant
and the Exercise Price to the Holder and this Warrant shall be deemed not to
have been exercised.
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10. OTHER METHODS OF PAYMENT OF EXERCISE PRICE.
(a) The Holder at its option may provide the Exercise Price by reducing
the number of shares for which the Warrant is otherwise exercisable by the
number of shares having fair market value equal to the Exercise Price. In such a
case, tender of the Exercise Price shall be effected by Holder's written notice
to the Company of such reduction. For purposes hereof, the average of any
publicly-reported closing bid and asked prices for the Common Stock on the last
ten (10) trading days prior to the Exercise Date, shall be deemed to be the fair
market value of the Common Stock.
(b) The Holder may at its option provide the Exercise Price or any
portion thereof by reducing the principal balance of its Debenture in a
corresponding amount. In such a case, tender of the Exercise Price shall be
effected by Holder's written notice to the Company of such reduction and
delivery of the relevant Debenture, and the Company shall (without charge to the
Holder) reissue to the Holder such Debenture with a principal amount equal to
the excess of the previous principal amount over the relevant Exercise Price or
portion thereof, but otherwise with the text thereof unchanged.
11. SALE OR EXCHANGE OF COMPANY OR ASSETS. If prior to the exercise in full
hereof, the Company sells or exchanges all or substantially all of its assets,
or all or substantially all the outstanding Common Stock is sold or exchanged to
any party other than the Holder, then the Holder at its option may receive upon
exercise hereof, in lieu of the Warrant Shares, such money or property it would
have been entitle to receive if this Warrant had been exercised in full prior to
such sale or exchange.
12. RESALE OF WARRANT OR SHARES. Neither this Warrant nor any Warrant
Shares, have been registered under the Securities Act of 1933 as amended, or
under the securities laws of any state. Neither this Warrant nor any shares when
issued may be sold, transferred, pledged or hypothecated in the absence of (i)
an effective registration statement for this Warrant or the shares, as the case
may be, under the Securities Act of 1933 as amended and such registration or
qualification as may be necessary under the securities laws of any state, or
(ii) an opinion of a counsel reasonably satisfactory to the Company (which shall
include, without limitation, staff counsel of any Holder which is a Qualified
Institutional Buyer, Dickstein Shapiro Morin & Oshinsky LLP, Piper Marbury
Rudnick & Wolfe L.L.P. or Chapman and Cutler) that such registration or
qualification is not required. The Company shall cause a certificate or
certificates evidencing all or any of the shares issued upon exercise hereof
prior to said registration and qualification of such shares to bear, the
following legend:
The shares evidenced by this certificate have not been registered under
the Securities Act of 1933 as amended, or under the securities laws of
any state. The shares may not be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement under
the Securities Act of 1933, as amended, and such registration or
qualification as may be necessary under the securities laws of any state,
or an opinion of counsel
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satisfactory to the Company that such registration or qualification is
not required.
13. TRANSFER. This Warrant shall be registered on the books of the Company
which shall be kept at its principal office for that purpose, and shall be
transferable in whole or in part but only on such books by the Holder with
written notice substantially in the form of Exhibit 13.00 hereof, and only in
compliance with the preceding paragraph. The Company may issue appropriate stop
orders to its transfer agent to prevent a transfer in violation of the preceding
paragraph.
14. PARTIAL EXERCISE AND PARTIAL ASSIGNMENT.
(a) PARTIAL EXERCISE. If this Warrant is exercised in part only, upon
such exercise according to the terms hereof (including the surrender of this
Warrant instrument), in addition to other acts required herein in such case, the
Company shall (without charge to the Holder) reissue to the Holder this Warrant
with the number of Warrant Shares specified as the number in respect of which
this Warrant shall not have been exercised, but otherwise with the text hereof
unchanged.
(b) PARTIAL ASSIGNMENT. Subject to and in accordance with the transfer
restrictions referred to in the legend provided hereon and Section 14.2 of the
Investment Agreement, this Warrant may be assigned in whole or in part. Such an
assignment shall be made by surrendering this Warrant to the principal office of
the Company in Annapolis, MD with the assignment form at the end hereof or
another appropriate form of assignment duly executed. If this Warrant is being
assigned in whole and Holder hereof previously has not partially exercised this
Warrant, the assignee shall receive a new Warrant (registered in the name of
such assignee or its nominee) which new Warrant shall cover the number of
Warrant Shares assigned. If this Warrant is being assigned in part and the
Holder hereof previously has not partially exercised this Warrant, the assignor
and assignee shall each receive a new Warrant (which, in this case of the
assignee, shall be registered in the name of the assignee or its nominee) which
new Warrants shall cover the number of Warrant Shares not so assigned and the
number of Warrant Shares assigned, respectively. If this Warrant is being
assigned in whole and the holder hereof has previously partially exercised this
Warrant, the assignee shall receive a new Warrant (registered in the name of
assignee or its nominee), which new Warrant shall cover the number of shares so
assigned. If this Warrant is being assigned in part and the Holder hereof
previously has partially exercised this Warrant the assignor and assignee shall
each receive a new Warrant (which, in the case of the assignee, shall registered
in the name of the assignee or its nominee), each of which new Warrants shall
cover the number of Warrant Shares not so assigned and in respect of which no
such exercise has been made in the case of the assignor, and the number of
Warrant Shares so assigned in the case of the assignee.
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(c) In the case of any replacement or reissued Warrant provided herein,
the relevant instrument shall be included within the definition of Series A
Warrants and Warrants under the Agreement for all purposes.
15. CLOSING OF BOOKS. The Company shall not close its transfer books against
the transfer of this Warrant or any Common Stock or other securities issuable
upon the exercise of this Warrant in any manner which interferes with the
exercise of this Warrant.
16. REPLACEMENT OF WARRANT. At the request of the Holder and on production
of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft, or
destruction), in case the Holder is not a Qualified Institutional Buyer pursuant
to the Securities Act, if required by the Company), upon delivery of an
indemnity agreement with surety in such reasonable amount as the Company may
determine thereof, the Company at its expense will issue in lieu thereof a new
Warrant of like tenor.
17. SECURITIES COMPLIANCE REPRESENTATION. The Holder by its acceptance
hereof acknowledges that this Warrant is not registered under any federal or
state securities laws and may not be transferred except pursuant to registration
or exemption therefrom, and covenants that the Holder will not distribute the
same in violation of any state or federal law or regulation.
18. NOTICE. Any notice or other communication required by this Warrant to be
given to the Holder shall be provided according to the notice provisions in the
Investment Agreement.
19. CHOICE OF LAW. This Warrant shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the substantive
laws of the jurisdiction of the Company's incorporation, without regard to its
principles of conflicts of law.
20. Waiver of Jury Trial. THE COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY OF
ALL CLAIMS, DEFENSES, COUNTERCLAIMS AND SUITS OF ANY KIND DIRECTLY OR INDIRECTLY
ARISING FROM OR RELATING TO THIS WARRANT OR THE DEALINGS OF THE PARTIES IN
RESPECT HERETO. THE COMPANY ACKNOWLEDGES AND AGREES THAT THIS PROVISION IS A
MATERIAL TERM OF THIS WARRANT AND THAT THE HOLDER WOULD NOT EXTEND ANY FUNDS
UNDER THE LOAN DOCUMENTS IF THIS WAIVER OF JURY TRIAL WERE NOT A PART OF THIS
WARRANT. THE COMPANY ACKNOWLEDGES THAT THIS IS A WAIVER OF A LEGAL RIGHT AND
THAT IT MAKES THIS WAIVER VOLUNTARILY AND KNOWINGLY AFTER CONSULTATION WITH, OR
THE OPPORTUNITY TO CONSULT WITH, COUNSEL OF ITS CHOICE. THE COMPANY AGREES THAT
ALL SUCH CLAIMS, DEFENSES, COUNTERCLAIMS AND SUITS SHALL BE TRIED BEFORE A JUDGE
OF A COURT OF COMPETENT JURISDICTION, WITHOUT A JURY.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on its
behalf by its undersigned officer, and its corporate seal to be hereunto
affixed, as of the date first above written.
FTI Consulting, Inc.
Witness: By:
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Name:
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