<PAGE>
As filed with the Securities and Exchange Commission on May 1, 2000.
Registration No. 333-____
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
DIAL-THRU INTERNATIONAL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 75-2801677
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8100 Jetstar Drive, Suite 100 75063
Irving, Texas (Zip Code)
(Address of Principal Executive Offices)
_________________________
COMMON STOCK PURCHASE WARRANTS
FOR CERTAIN EMPLOYEES AND CONSULTANTS OF
DIAL-THRU INTERNATIONAL CORPORATION
(Full title of the plans)
_________________________
Roger D. Bryant Copy to:
Chairman and Chief Executive Officer William L. Rivers, Esq.
DIAL-THRU INTERNATIONAL CORPORATION ARTER & HADDEN LLP
8100 Jetstar Drive, Suite 100 1717 Main St., Suite 4100
Irving, Texas 75063 Dallas, Texas 75201-4605
(Name and address of (214) 761-2100
agent for service)
(972) 929-1920
(Telephone number,
including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Securities to be Amount to be Registered(1) Proposed Maximum Offering Proposed Maximum Amount of Registration
Registered Price Per Share Aggregate Offering Price Fee
<S> <C> <C> <C> <C>
Common Stock $.001 par 20,000 shares 0.45(3) $ 9,000 $ 3.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 50,000 shares 0.46(3) $ 23,000 $ 6.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 50,000 shares 0.53(3) $ 26,500 $ 7.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 50,000 shares 0.55(3) $ 27,500 $ 8.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 50,000 shares 0.80(3) $ 40,000 $ 11.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 110,000 shares 0.81(3) $ 89,100 $ 24.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 100,000 shares 0.88(3) $ 88,000 $ 24.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 720,000 shares 1.44(3) $1,036,800 $274.00
value(2)
====================================================================================================================================
TOTAL 1,150,000 $1,339,900 $357.00
====================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416, shares of Common Stock of the Registrant issuable
upon exercise of Common Stock Purchase Warrants ("Compensation Contracts")
granted to certain consultants of the Registrant in order to prevent dilution
resulting from any future stock split, stock divided or similar transactions are
also being registered hereunder.
(2) Represents the shares of Common Stock reserved for issuance under the
Compensation Contracts.
(3) Based on the price per share pursuant to which outstanding Compensation
Contracts can be exercised pursuant to Rule 457(h).
================================================================================
<PAGE>
EXPLANATORY NOTE
Purpose.
-------
This Registration Statement is being filed for the purposes of registering
up to 1,150,000 shares of the Registrant's Common Stock issuable upon exercise
of certain Common Stock Purchase Warrants ("Compensation Contracts") granted by
the Registrant to certain of its employees and consultants. The Registrant
represents that the Compensation Contracts have been issued under an "employee
benefit plan," as that term is defined pursuant to Rule 405 of Regulation C.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are hereby incorporated by
reference:
(a) our Annual Report on Form 10-K, filed with the Commission for the
fiscal year ended October 31, 1999;
(b) our Quarterly Report on Form 10-Q filed with the Commission for the
quarter ended January 31, 2000; and
(c) all documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to
the date of this Registration Statement shall be deemed to be
incorporated herein by reference and to be a part hereof from the date
of filing of such documents until such time as there shall have been
filed a post-effective amendment that indicates that all securities
offered under the Registration Statement have been sold or that
deregisters all securities remaining unsold at the time of the
amendment.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that the statement
contained herein or in any subsequently filed document that also is or is deemed
to be incorporated by reference herein, or in any document forming any part of
the Section 10(a) Prospectus to be delivered to participants in connection with,
modifies or supersedes such statement. Any 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.
<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation provides that the Registrant
shall indemnify its directors and officers to the fullest extent permitted by
the Delaware General Corporation Law ("DGCL").
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, 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 reasonable cause to believe their conduct was unlawful. In a
derivative action (i.e., one by or in the right of the corporation),
indemnification may be made only for expenses actually and reasonably incurred
by directors, officers, employees or agents in connection with the defense or
settlement of an action or suit, and only with respect to a matter as to which
they shall have acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made if such persons 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.
Section 102(b)(7) of the DGCL permits a corporation organized under
Delaware law to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director subject to certain limitations. The Registrant's Certificate
of Incorporation includes the following provision:
No director of the Corporation shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director of the Corporation, PROVIDED, HOWEVER, that
the foregoing is not intended to eliminate or limit the liability of a
director of the Corporation for (i) any breach of a director's duty of
loyalty to the Corporation or its stockholders, (ii) acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) a violation of Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. No amendment or repeal of this
Article NINTH shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment.
2
<PAGE>
The Registrant's Bylaws further provides for the indemnification of, and
advancement of expenses to, its officers and directors in certain circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) Exhibits.
Exhibit Description
--------------- ----------------------------------------------------------
4.1 Common Stock Purchase Warrant issued to Thomas Rinehart
dated April 26, 1999
4.2 Common Stock Purchase Warrant issued to Lyle M. Green
dated November 2, 1999
4.3 Common Stock Purchase Warrant issued to Ivor Flannery
dated December 22, 1999
4.4 Common Stock Purchase Warrant issued to Masoud Safi dated
December 22, 1999
4.5 Common Stock Purchase Warrant issued to Kamran Ahmad dated
December 22, 1999
4.6 Common Stock Purchase Warrant issued to Tom Schnaible
dated December 22, 1999
4.7 Common Stock Purchase Warrant issued to Don Thorn dated
December 22, 1999
4.8 Common Stock Purchase Warrant issued to Carl Peterson
dated December 22, 1999
4.9 Common Stock Purchase Warrant issued to Robert Trail dated
December 22, 1999
4.10 Common Stock Purchase Warrant issued to Patrick Doualle
dated December 22, 1999
4.11 Common Stock Purchase Warrant issued to Tim Dotson dated
December 22, 1999
4.12 Common Stock Purchase Warrant issued to Lawrence Vierra
dated December 22, 1999
4.13 Amended and Restated Common Stock Purchase Warrant issued
to Alvaro Restrepo dated March 1, 2000
4.14 Amended and Restated Common Stock Purchase Warrant issued
to Paul Saunier dated March 1, 2000
3
<PAGE>
4.15 Amended and Restated Common Stock Purchase Warrant issued
to Eric Iffland dated March 1, 2000
4.16 Amended and Restated Common Stock Purchase Warrant issued
to Emilio Martinez dated March 1, 2000
4.17 Amended and Restated Common Stock Purchase Warrant issued
to Alfredo Polo dated March 1, 2000
4.18 Amended and Restated Common Stock Purchase Warrant issued
to Carlos Bedoya dated March 1, 2000
4.19 Amended and Restated Common Stock Purchase Warrant issued
to Juan Carlos Gaviria dated March 1, 2000
4.20 Amended and Restated Common Stock Purchase Warrant issued
to Juan Carlos Gaviria dated March 1, 2000
5.1 Opinion of Arter & Hadden LLP, as to the validly of the
shares of Common Stock offered hereby (including shares of
Common Stock issuable upon exercise of the Compensation
Contracts)
23.1 Consent of Arter & Hadden LLP (included as part of Exhibit
5.1)
23.2 Consent of King, Griffin & Adamson P.C., independent
auditors
23.3 Consent of Ernst & Young LLP, independent auditors
4
<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 Act; (ii) to
reflect in the prospectus any facts or events arising after the effective
date of the 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 the registration
statement; (iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that clauses (i) and (ii) do not apply if
the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in 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 Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Irving, Texas, on April 28, 2000.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
-------------------
Roger D. Bryant
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons and in the
capacities indicated on April 28, 2000.
Signatures Titles
- ------------------------- -----------------------------------------------------
/s/ Roger D. Bryant Chairman, Chief Executive Officer and Director
- -------------------------
Roger D. Bryant (Principal Executive Officer)
/s/ John Jenkins Chief Operating Officer, Chief Financial Officer,
- -------------------------
John Jenkins President and Director
(Principal Financial and Accounting Officer)
/s/ Lawrence Vierra Executive Vice President and Director
- -------------------------
Lawrence Vierra
/s/ Nick DeMare Director
- -------------------------
Nick DeMare
/s/ Robert M. Fidler Director
- -------------------------
Robert M. Fidler
/s/ Scott D. Cook Director
- -------------------------
Scott D. Cook
6
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
--------------- -----------------------------------------------------------
4.1 Common Stock Purchase Warrant issued to Thomas Rinehart
dated April 26, 1999
4.2 Common Stock Purchase Warrant issued to Lyle M. Green dated
November 2, 1999
4.3 Common Stock Purchase Warrant issued to Ivor Flannery dated
December 22, 1999
4.4 Common Stock Purchase Warrant issued to Masoud Safi dated
December 22, 1999
4.5 Common Stock Purchase Warrant issued to Kamran Ahmad dated
December 22, 1999
4.6 Common Stock Purchase Warrant issued to Tom Schnaible dated
December 22, 1999
4.7 Common Stock Purchase Warrant issued to Don Thorn dated
December 22, 1999
4.8 Common Stock Purchase Warrant issued to Carl Peterson dated
December 22, 1999
4.9 Common Stock Purchase Warrant issued to Robert Trail dated
December 22, 1999
4.10 Common Stock Purchase Warrant issued to Patrick Doualle
dated December 22, 1999
4.11 Common Stock Purchase Warrant issued to Tim Dotson dated
December 22, 1999
4.12 Common Stock Purchase Warrant issued to Lawrence Vierra
dated December 22, 1999
4.13 Amended and Restated Common Stock Purchase Warrant issued
to Alvaro Restrepo dated March 1, 2000
4.14 Amended and Restated Common Stock Purchase Warrant issued
to Paul Saunier dated March 1, 2000
4.15 Amended and Restated Common Stock Purchase Warrant issued
to Eric Iffland dated March 1, 2000
4.16 Amended and Restated Common Stock Purchase Warrant issued
to Emilio Martinez dated March 1, 2000
4.17 Amended and Restated Common Stock Purchase Warrant issued
to Alfredo Polo dated March 1, 2000
7
<PAGE>
4.18 Amended and Restated Common Stock Purchase Warrant issued
to Carlos Bedoya dated March 1, 2000
4.19 Amended and Restated Common Stock Purchase Warrant issued
to Juan Carlos Gaviria dated March 1, 2000
4.20 Amended and Restated Common Stock Purchase Warrant issued
to Juan Carlos Gaviria dated March 1, 2000
5.1 Opinion of Arter & Hadden LLP, as to the validly of the
shares of Common Stock offered hereby (including shares of
Common Stock issuable upon exercise of the Compensation
Contracts)
23.1 Consent of Arter & Hadden LLP (included as part of Exhibit
5.1)
23.2 Consent of King, Griffin & Adamson P.C., independent
auditors
23.3 Consent of Ernst & Young LLP, independent auditors
8
<PAGE>
EXHIBIT 4.1
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
ARDIS Telecom & Technologies, Inc.
COMMON STOCK PURCHASE WARRANT
DATED: April 26, 1999
- -------------------------------------------------------------------------------
Number of Common Shares: 20,000 Holder: W. Thomas Rinehart
Purchase Price: $0.45 per share 700 Freeling Drive
Expiration Date: May 1, 2001 Sarasota, FL 34242
For identification only. The governing terms of this
Warrant are set forth below.
- -------------------------------------------------------------------------------
ARDIS Telecom & Technologies, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for value received, W. Thomas Rinehart (the "Holder"), is
entitled, subject to the terms set forth below, to purchase from the Company at
any time or from time to time prior to May 1, 2001 (the "Exercise Period"), at
the Purchase Price hereinafter set forth, Twenty Thousand (20,000) fully paid
and nonassessable shares of Common Stock (as hereinafter defined) of the
Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein. This Warrant has
been delivered by the Company pursuant to the terms of the Consulting Agreement
between the Holder, the Company and RDST, Inc., a Texas corporation and wholly-
owned subsidiary of the Company.
The purchase price per share of Common Stock issuable upon exercise of this
Warrant (the "Purchase Price") shall initially be $0.45; provided, however, that
the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall mean ARDIS Telecom & Technologies,
Inc. and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock, .001
par value per share.
(c) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable by the Holder hereof pursuant to the terms of this Warrant.
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
1. Exercise of Warrant.
1.1. Method of Exercise. This Warrant may be exercised in whole or
in part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of Warrant Shares at such time, by the Holder hereof by delivery
to the Company at its principal office of (i) a notice of exercise (a
"Notice of Exercise") substantially in the form attached hereto as
Exhibit A, (ii) evidence satisfactory to the Company of the authority of
the person executing such Notice of Exercise, (iii) this Warrant, and (iv)
payment of the Purchase Price multiplied by the number of shares of Common
Stock for which this Warrant is being exercised (the "Exercise Price").
Payment of the Exercise Price shall be made by check or bank draft payable
to the order of the Company or by wire transfer to the account of the
Company. The shares so purchased shall be deemed to be issued as of the
close of business on the date on which the Company shall have received from
the Holder payment in full of the Exercise Price and the other documents
referred to herein (the "Exercise Date").
1.2. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations concerning the Holder as are necessary or appropriate to
assure compliance by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
the denominator of which shall be the number of unexercised shares of
Common Stock covered by this Warrant as adjusted for such stock increase.
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
6. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
7. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
8. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
9. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
DATED as of April 26, 1999.
ARDIS Telecom & Technologies, Inc.
By: /s/ Roger D. Bryant
-----------------------------------
Name: Roger D. Bryant
---------------------------------
Title: President
--------------------------------
Address: 8100 Jetstar Drive, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ W. Thomas Rinehart
---------------------------------------
W. Thomas Rinehart
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To ARDIS Telecom & Technologies, Inc.
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
___________/1/ shares of Common Stock (as defined in such Warrant) and herewith
makes payment therefor of $__________ as of the date written below. The
undersigned requests that the certificates for such shares of Common Stock be
issued in the name of, and delivered to, _________________________________ whose
address is ___________________________________________________________________.
Dated:
----------------------------
---------------------------------------
(Name must conform to name of holder as
specified on the face of the Warrant)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address of holder:
---------------------------------------
---------------------------------------
---------------------------------------
Date of exercise:
--------------------
- -------------------------
/1/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.2
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
ARDIS Telecom & Technologies, Inc.
COMMON STOCK PURCHASE WARRANT
DATED: November 2, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 10,000 Holder: Lyle M. Green
Purchase Price: $0.81 per share c/o Patriot Interactive Group
Expiration Date: November 1, 2004 8544 Sunset Boulevard
Los Angeles, CA 90069-2310
For identification only. The governing terms of this
Warrant are set forth below.
- --------------------------------------------------------------------------------
ARDIS Telecom & Technologies, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for value received, Lyle M. Green (the "Holder"), is
entitled, subject to the terms set forth below, to purchase from the Company at
any time or from time to time prior to November 1, 2004 (the "Exercise Period"),
at the Purchase Price hereinafter set forth, Ten Thousand (10,000) fully paid
and nonassessable shares of Common Stock (as hereinafter defined) of the
Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of this
Warrant (the "Purchase Price") shall initially be $0.81; provided, however, that
the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall mean ARDIS Telecom & Technologies,
Inc. and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock, .001
par value per share.
(c) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable by the Holder hereof pursuant to the terms of this Warrant.
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
1. Exercise of Warrant.
1.1. Method of Exercise. This Warrant may be exercised in whole or
in part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of Warrant Shares at such time, by the Holder hereof by delivery
to the Company at its principal office of (i) a notice of exercise (a
"Notice of Exercise") substantially in the form attached hereto as
Exhibit A, (ii) evidence satisfactory to the Company of the authority of
the person executing such Notice of Exercise, (iii) this Warrant, and (iv)
payment of the Purchase Price multiplied by the number of shares of Common
Stock for which this Warrant is being exercised (the "Exercise Price").
Payment of the Exercise Price shall be made by check or bank draft payable
to the order of the Company or by wire transfer to the account of the
Company. The shares so purchased shall be deemed to be issued as of the
close of business on the date on which the Company shall have received from
the Holder payment in full of the Exercise Price and the other documents
referred to herein (the "Exercise Date").
1.2. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations concerning the Holder as are necessary or appropriate to
assure compliance by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
the denominator of which shall be the number of unexercised shares of
Common Stock covered by this Warrant as adjusted for such stock increase.
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
6. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
7. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
8. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
9. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
DATED as of November 2, 1999.
ARDIS Telecom & Technologies, Inc.
By: /s/ Roger D. Bryant
-----------------------------------
Name: Roger D. Bryant
---------------------------------
Title: President
---------------------------------
Address: 8100 Jetstar Drive, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Lyle M. Green
---------------------------------------
Lyle M. Green
Address: c/o Patriot Interactive Group
8544 Sunset Boulevard
Los Angeles, CA 90069-2310
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To ARDIS Telecom & Technologies, Inc.
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
_________/2/ shares of Common Stock (as defined in such Warrant) and herewith
makes payment therefor of $__________ as of the date written below. The
undersigned requests that the certificates for such shares of Common Stock be
issued in the name of, and delivered to, _________________________________ whose
address is __________________________________________________________________.
Dated:
-----------------------------
---------------------------------------
(Name must conform to name of holder as
specified on the face of the Warrant)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address of holder:
---------------------------------------
---------------------------------------
---------------------------------------
Date of exercise:
------------------
- -------------------------
/2/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.3
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 100,000 Holder: Ivor Flannery
Purchase Price: $1.44
Expiration Date: Three (3) years from
date of vesting
For identification only. The governing terms of
this Warrant are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Ivor Flannery (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to the earlier of (a) three
(3) years following the date of vesting of the Warrant or (b) the date of
termination of employment of the Holder with the Company (the "Exercise
Period"), at the Purchase Price hereinafter set forth, One Hundred Thousand
(100,000) fully paid and nonassessable shares of Common Stock (as defined below)
of the Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $1.44, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock, .001
par value per share.
(c) The term "Fair Market Value" means the closing price of the
shares of Common Stock on the date of delivery of any Notice of Exercise as
reported on the Nasdaq SmallCap Market (or other exchange on which the
Common Stock is traded) or,
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
if not then traded on any exchange, then the closing price as of such date
on the over-the-counter market or, if not quoted on the over-the-counter
market, then as determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant Shares
shall vest upon each of the first, second and third anniversary dates of
the date of this Agreement. Holder shall not have the right to acquire any
Warrant Shares pursuant to this Warrant prior the vesting of such rights as
set forth in this Section 1.1. Notwithstanding the vesting period set forth
above, nothing contained herein shall be construed to imply that Holder is
guaranteed employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject to
the vesting requirements set forth above) by the Holder hereof in whole or
in part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of the Company or by wire transfer to the account of the Company. The
shares so purchased shall be deemed to be issued as of the close of
business on the date on which the Company shall have received from the
Holder payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
concerning the Holder as are necessary or appropriate to assure compliance
by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
-------------------------------
Name: Roger D. Bryant
-----------------------------
Title: Chairman
-----------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Ivor Flannery
-----------------------------------
Printed Name: Ivor Flannery
Address: 244 Plantation Drive
Coppell, Texas 75019
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5
(ARDIS Telecom & Technologies, Inc.)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/3/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability)
of $__________, as of the date written below. The undersigned requests that
the certificates for such shares of Common Stock be issued in the name of,
and delivered to, _______________________________________________ whose
address is _______________________________________________________________.
Dated:
-----------------------------
---------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address of Holder:
---------------------------------------
---------------------------------------
---------------------------------------
Date of exercise:
---------------------
- -------------------------
/3/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.4
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 100,000 Holder: Masoud Safi
Purchase Price: $1.44
Expiration Date: Three (3) years from
date of vesting
For identification only. The governing terms of this
Warrant are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Masoud Safi (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to the earlier of (a) three
(3) years following the date of vesting of the Warrant or (b) the date of
termination of employment of the Holder with the Company (the "Exercise
Period"), at the Purchase Price hereinafter set forth, One Hundred Thousand
(100,000) fully paid and nonassessable shares of Common Stock (as defined below)
of the Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $1.44, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock, .001
par value per share.
(c) The term "Fair Market Value" means the closing price of the
shares of Common Stock on the date of delivery of any Notice of Exercise as
reported on the Nasdaq SmallCap Market (or other exchange on which the
Common Stock is traded) or,
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
if not then traded on any exchange, then the closing price as of such date
on the over-the-counter market or, if not quoted on the over-the-counter
market, then as determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant Shares
shall vest upon each of the first, second and third anniversary dates of
the date of this Agreement. Holder shall not have the right to acquire any
Warrant Shares pursuant to this Warrant prior the vesting of such rights as
set forth in this Section 1.1. Notwithstanding the vesting period set forth
above, nothing contained herein shall be construed to imply that Holder is
guaranteed employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject to
the vesting requirements set forth above) by the Holder hereof in whole or
in part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of the Company or by wire transfer to the account of the Company. The
shares so purchased shall be deemed to be issued as of the close of
business on the date on which the Company shall have received from the
Holder payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
concerning the Holder as are necessary or appropriate to assure compliance
by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
-------------------------------
Name: Roger D. Bryant
-----------------------------
Title: Chairman
----------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Masoud Safi
-----------------------------------
Printed Name: Masoud Safi
Address:
--------------------------
--------------------------
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
___________/4/ shares of Common Stock (as defined in such Warrant) and herewith
makes payment therefor (including any Tax Withholding Liability) of $__________,
as of the date written below. The undersigned requests that the certificates for
such shares of Common Stock be issued in the name of, and delivered to,
_______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
----------------------------
---------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address of Holder:
---------------------------------------
---------------------------------------
---------------------------------------
Date of exercise:
---------------------
- -------------------------
/4/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.5
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 100,000 Holder: Kamran Ahmad
Purchase Price: $1.44
Expiration Date: Three (3) years from date of vesting
For identification only.
The governing terms of this Warrant are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Kamran Ahmad (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to the earlier of (a) three
(3) years following the date of vesting of the Warrant or (b) the date of
termination of employment of the Holder with the Company (the "Exercise
Period"), at the Purchase Price hereinafter set forth, One Hundred Thousand
(100,000) fully paid and nonassessable shares of Common Stock (as defined below)
of the Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of this
Warrant (the "Purchase Price") shall initially be $1.44, provided, however, that
the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation and
any entity that shall succeed or assume the obligations of such corporation
hereunder.
(b) The term "Common Stock" means the Company's common stock, .001 par
value per share.
(c) The term "Fair Market Value" means the closing price of the shares
of Common Stock on the date of delivery of any Notice of Exercise as
reported on the Nasdaq SmallCap Market (or other exchange on which the
Common Stock is traded) or,
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru Internatoinal Corporation)
<PAGE>
if not then traded on any exchange, then the closing price as of such date
on the over-the-counter market or, if not quoted on the over-the-counter
market, then as determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and state
income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the Exercise
Period, that number of shares of Common Stock which shall be exercisable
(subject to any vesting requirements) by the Holder hereof pursuant to the
terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant Shares
shall vest upon each of the first, second and third anniversary dates of
the date of this Agreement. Holder shall not have the right to acquire any
Warrant Shares pursuant to this Warrant prior the vesting of such rights as
set forth in this Section 1.1. Notwithstanding the vesting period set forth
above, nothing contained herein shall be construed to imply that Holder is
guaranteed employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject to the
vesting requirements set forth above) by the Holder hereof in whole or in
part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of the Company or by wire transfer to the account of the Company. The
shares so purchased shall be deemed to be issued as of the close of
business on the date on which the Company shall have received from the
Holder payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru Internatoinal Corporation)
<PAGE>
concerning the Holder as are necessary or appropriate to assure compliance
by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into another
corporation, the holder of this Warrant will thereafter receive, upon the
exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru Internatoinal Corporation)
<PAGE>
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru Internatoinal Corporation)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
------------------------------
Name: Roger D. Bryant
------------------------------
Title: Chairman
------------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Kamran Ahmad
------------------------------------
Printed Name: Kamran Ahmad
Address: --------------------------
--------------------------
Fax:
----------------------
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru Internatoinal Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/5/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
______________________________________________________________________________.
Dated:
------------------------------
---------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Address of Holder:
----------------------------------------
----------------------------------------
----------------------------------------
Date of exercise:
----------------------
- ---------------
/5/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.6
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 30,000 Holder: Tom Schnaible
Purchase Price: $1.44
Expiration Date: Three (3) years from date of vesting
For identification only.
The governing terms of this Warrant are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Tom Schnaible (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to the earlier of (a) three
(3) years following the date of vesting of the Warrant or (b) the date of
termination of employment of the Holder with the Company (the "Exercise
Period"), at the Purchase Price hereinafter set forth, Thirty Thousand (30,000)
fully paid and nonassessable shares of Common Stock (as defined below) of the
Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of this
Warrant (the "Purchase Price") shall initially be $1.44, provided, however, that
the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation and
any entity that shall succeed or assume the obligations of such corporation
hereunder.
(b) The term "Common Stock" means the Company's common stock, .001 par
value per share.
(c) The term "Fair Market Value" means the closing price of the shares
of Common Stock on the date of delivery of any Notice of Exercise as
reported on the Nasdaq SmallCap Market (or other exchange on which the
Common Stock is traded) or, if not then traded on any exchange, then the
closing price as of such date on the over-the-
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru Internatoinal Corporation)
<PAGE>
counter market or, if not quoted on the over-the-counter market, then as
determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and state
income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the Exercise
Period, that number of shares of Common Stock which shall be exercisable
(subject to any vesting requirements) by the Holder hereof pursuant to the
terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant Shares
shall vest upon each of the first, second and third anniversary dates of
the date of this Agreement. Holder shall not have the right to acquire any
Warrant Shares pursuant to this Warrant prior the vesting of such rights as
set forth in this Section 1.1. Notwithstanding the vesting period set forth
above, nothing contained herein shall be construed to imply that Holder is
guaranteed employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject to the
vesting requirements set forth above) by the Holder hereof in whole or in
part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of the Company or by wire transfer to the account of the Company. The
shares so purchased shall be deemed to be issued as of the close of
business on the date on which the Company shall have received from the
Holder payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations concerning the Holder as are necessary or appropriate to
assure compliance by the Holder with the Securities Act.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru Internatoinal Corporation)
<PAGE>
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into another
corporation, the holder of this Warrant will thereafter receive, upon the
exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru Internatoinal Corporation)
<PAGE>
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru Internatoinal Corporation)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
-----------------------------------
Name: Roger D. Bryant
-----------------------------------
Title: Chairman
-----------------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Tom Schnaible
------------------------------------------
Printed Name: Tom Schnaible
Address:
--------------------------------
--------------------------------
Fax:
----------------------------
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru Internatoinal Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/6/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
_______________________________________________________________________________.
Dated:
-------------------------
----------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address of Holder:
---------------------------------------
---------------------------------------
---------------------------------------
Date of exercise:
----------------
- ---------------
/6/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.7
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 30,000 Holder: Don Thorn
Purchase Price: $1.44
Expiration Date: Three (3) years from date of vesting
For identification only.
The governing terms of this Warrant are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Don Thorn (the "Holder")
is entitled, subject to the terms set forth below, to purchase from the Company
at any time or from time to time prior to the earlier of (a) three (3) years
following the date of vesting of the Warrant or (b) the date of termination of
employment of the Holder with the Company (the "Exercise Period"), at the
Purchase Price hereinafter set forth, Thirty Thousand (30,000) fully paid and
nonassessable shares of Common Stock (as defined below) of the Company. The
number and character of such shares of Common Stock and the Purchase Price are
subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of this
Warrant (the "Purchase Price") shall initially be $1.44, provided, however, that
the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation and
any entity that shall succeed or assume the obligations of such corporation
hereunder.
(b) The term "Common Stock" means the Company's common stock, .001 par
value per share.
(c) The term "Fair Market Value" means the closing price of the shares
of Common Stock on the date of delivery of any Notice of Exercise as
reported on the Nasdaq SmallCap Market (or other exchange on which the
Common Stock is traded) or, if not then traded on any exchange, then the
closing price as of such date on the over-the-
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru Internatoinal Corporation)
<PAGE>
counter market or, if not quoted on the over-the-counter market, then as
determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and state
income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the Exercise
Period, that number of shares of Common Stock which shall be exercisable
(subject to any vesting requirements) by the Holder hereof pursuant to the
terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant Shares
shall vest upon each of the first, second and third anniversary dates of
the date of this Agreement. Holder shall not have the right to acquire any
Warrant Shares pursuant to this Warrant prior the vesting of such rights as
set forth in this Section 1.1. Notwithstanding the vesting period set forth
above, nothing contained herein shall be construed to imply that Holder is
guaranteed employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject to the
vesting requirements set forth above) by the Holder hereof in whole or in
part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of the Company or by wire transfer to the account of the Company. The
shares so purchased shall be deemed to be issued as of the close of
business on the date on which the Company shall have received from the
Holder payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations concerning the Holder as are necessary or appropriate to
assure compliance by the Holder with the Securities Act.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru Internatoinal Corporation)
<PAGE>
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into another
corporation, the holder of this Warrant will thereafter receive, upon the
exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru Internatoinal Corporation)
<PAGE>
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru Internatoinal Corporation)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
------------------------------
Name: Roger D. Bryant
------------------------------
Title: Chairman
------------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Don Thorn
------------------------------------
Printed Name: Don Thorn
Address: --------------------------
--------------------------
Fax:
----------------------
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru Internatoinal Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/7/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
______________________________________________________________________________.
Dated:
------------------------------
---------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Address of Holder:
----------------------------------------
----------------------------------------
----------------------------------------
Date of exercise:
----------------------
- ---------------
/7/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.8
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 15,000 Holder: Carl Peterson
Purchase Price: $1.44
Expiration Date: Three (3) years from date of vesting
For identification only.
The governing terms of this Warrant are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Carl Peterson (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to the earlier of (a) three
(3) years following the date of vesting of the Warrant or (b) the date of
termination of employment of the Holder with the Company (the "Exercise
Period"), at the Purchase Price hereinafter set forth, Fifteen Thousand (15,000)
fully paid and nonassessable shares of Common Stock (as defined below) of the
Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of this
Warrant (the "Purchase Price") shall initially be $1.44, provided, however, that
the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation and
any entity that shall succeed or assume the obligations of such corporation
hereunder.
(b) The term "Common Stock" means the Company's common stock, .001 par
value per share.
(c) The term "Fair Market Value" means the closing price of the shares
of Common Stock on the date of delivery of any Notice of Exercise as
reported on the Nasdaq SmallCap Market (or other exchange on which the
Common Stock is traded) or,
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru Internatoinal Corporation)
<PAGE>
if not then traded on any exchange, then the closing price as of such date
on the over-the-counter market or, if not quoted on the over-the-counter
market, then as determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and state
income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the Exercise
Period, that number of shares of Common Stock which shall be exercisable
(subject to any vesting requirements) by the Holder hereof pursuant to the
terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant Shares
shall vest upon each of the first, second and third anniversary dates of
the date of this Agreement. Holder shall not have the right to acquire any
Warrant Shares pursuant to this Warrant prior the vesting of such rights as
set forth in this Section 1.1. Notwithstanding the vesting period set forth
above, nothing contained herein shall be construed to imply that Holder is
guaranteed employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject to the
vesting requirements set forth above) by the Holder hereof in whole or in
part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of the Company or by wire transfer to the account of the Company. The
shares so purchased shall be deemed to be issued as of the close of
business on the date on which the Company shall have received from the
Holder payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru Internatoinal Corporation)
<PAGE>
concerning the Holder as are necessary or appropriate to assure compliance
by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into another
corporation, the holder of this Warrant will thereafter receive, upon the
exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru Internatoinal Corporation)
<PAGE>
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable
only by Holder and shall not be assignable or transferable. Any attempted
alienation, assignment, pledge, hypothecation, attachment, execution or similar
process, whether voluntary or involuntary, with respect to all or any part of
this Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru Internatoinal Corporation)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
------------------------------
Name: Roger D. Bryant
------------------------------
Title: Chairman
------------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Carl Peterson
------------------------------------
Printed Name: Carl Peterson
Address: --------------------------
--------------------------
Fax:
----------------------
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru Internatoinal Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/8/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
______________________________________________________________________________.
Dated:
------------------------------
---------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Address of Holder:
----------------------------------------
----------------------------------------
----------------------------------------
Date of exercise:
----------------------
- ---------------
/8/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.9
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 15,000 Holder: Robert Trail
Purchase Price: $1.44
Expiration Date: Three (3) years from date of vesting
For identification only. The governing terms of this Warrant are set forth
below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Robert Trail (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to the earlier of (a) three
(3) years following the date of vesting of the Warrant or (b) the date of
termination of employment of the Holder with the Company (the "Exercise
Period"), at the Purchase Price hereinafter set forth, Fifteen Thousand (15,000)
fully paid and nonassessable shares of Common Stock (as defined below) of the
Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $1.44, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock,
.001 par value per share.
(c) The term "Fair Market Value" means the closing price of the
shares of Common Stock on the date of delivery of any Notice of
Exercise as reported on the Nasdaq SmallCap Market (or other exchange
on which the Common Stock is traded) or,
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
if not then traded on any exchange, then the closing price as of such
date on the over-the-counter market or, if not quoted on the over-the-
counter market, then as determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable
to compensation income arising from the exercise of this Warrant
required by applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant
Shares shall vest upon each of the first, second and third anniversary
dates of the date of this Agreement. Holder shall not have the right
to acquire any Warrant Shares pursuant to this Warrant prior the
vesting of such rights as set forth in this Section 1.1.
Notwithstanding the vesting period set forth above, nothing contained
herein shall be construed to imply that Holder is guaranteed
employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject
to the vesting requirements set forth above) by the Holder hereof in
whole or in part (but not as to a fractional share of Common Stock),
at any time and from time to time during the Exercise Period for up
to, but not more than, the number of vested Warrant Shares at such
time, by delivery to the Company at its principal office of (i) a
notice of exercise (a "Notice of Exercise") substantially in the form
attached hereto as Exhibit A, (ii) evidence satisfactory to the
Company of the authority of the person executing such Notice of
Exercise, (iii) this Warrant, and (iv) payment of (A) the Purchase
Price multiplied by the number of shares of Common Stock for which
this Warrant is being exercised (the "Exercise Price") and (B) Tax
Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to
the order of the Company or by wire transfer to the account of the
Company. The shares so purchased shall be deemed to be issued as of
the close of business on the date on which the Company shall have
received from the Holder payment in full of the Exercise Price and Tax
Withholding Liability and the other documents referred to herein (the
"Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon
exercise of the Warrant solely for its own account for investment
purposes and not with a view to or for distributing such securities
unless such distribution has been registered with the Securities and
Exchange Commission or an applicable exemption is available therefor.
At the time this Warrant is exercised, the Company may require the
Holder to state in the Notice of Exercise such representations
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
concerning the Holder as are necessary or appropriate to assure
compliance by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of
any of the following events, the following adjustments to the rights granted
under this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of
the Company shall be increased by way of a stock dividend, stock
split, recapitalization, or other similar means, the number of
unexercised shares of Common Stock covered by this Warrant shall be
increased by the amount that a like number of shares of outstanding
Common Stock shall have been increased as a result of such stock
increase and the Purchase Price shall be adjusted by multiplying the
Purchase Price in effect immediately prior to such stock increase by a
fraction, the numerator of which shall be the number of unexercised
shares covered by this Warrant immediately prior to such stock
increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted
for such stock increase.
3.2. In case the number of outstanding shares of Common Stock of
the Company shall be reduced by recapitalization, reverse stock split
or otherwise, the number of unexercised shares covered by this Warrant
shall be reduced by the amount that a like number of shares of
outstanding Common Stock shall have been reduced as a result of such
stock reduction and the Purchase Price shall be adjusted by
multiplying the Purchase Price in effect immediately prior to such
stock reduction by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior
to such stock reduction and the denominator of which shall be the
number of unexercised shares covered by this Warrant as adjusted for
such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter
receive, upon the exercise thereof in accordance with the terms of
this Warrant, the securities or property to which the holder of the
number of shares of Common Stock then deliverable upon the exercise of
this Warrant would have been entitled upon such consolidation or
merger ("Other Securities") and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or property
thereafter deliverable upon the exercise of this Warrant.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder
shall be personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
--------------------------------
Name: Roger D. Bryant
------------------------------
Title: Chairman
-----------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Robert Trail
----------------------------------
Printed Name: Robert Trail
Address: -------------------------
-------------------------
Fax:
---------------------
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/9/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
--------------------------------
-----------------------------------
(Name must conform to name of Holder
as specified on the face of the
Warrant)
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
Address of Holder:
-----------------------------------
-----------------------------------
-----------------------------------
Date of exercise:
-----------------------
- -----------------------
/9/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case o a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.10
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 15,000 Holder: Patrick Doualle
Purchase Price: $1.44
Expiration Date: Three (3) years from date of vesting
For identification only. The governing terms of this Warrant are set forth
below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Patrick Doualle (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to the earlier of (a) three
(3) years following the date of vesting of the Warrant or (b) the date of
termination of employment of the Holder with the Company (the "Exercise
Period"), at the Purchase Price hereinafter set forth, Fifteen Thousand (15,000)
fully paid and nonassessable shares of Common Stock (as defined below) of the
Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $1.44, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock,
.001 par value per share.
(c) The term "Fair Market Value" means the closing price of the
shares of Common Stock on the date of delivery of any Notice of
Exercise as reported on the Nasdaq SmallCap Market (or other exchange
on which the Common Stock is traded) or,
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
if not then traded on any exchange, then the closing price as of such
date on the over-the-counter market or, if not quoted on the over-the-
counter market, then as determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable
to compensation income arising from the exercise of this Warrant
required by applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant
Shares shall vest upon each of the first, second and third anniversary
dates of the date of this Agreement. Holder shall not have the right
to acquire any Warrant Shares pursuant to this Warrant prior the
vesting of such rights as set forth in this Section 1.1.
Notwithstanding the vesting period set forth above, nothing contained
herein shall be construed to imply that Holder is guaranteed
employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject
to the vesting requirements set forth above) by the Holder hereof in
whole or in part (but not as to a fractional share of Common Stock),
at any time and from time to time during the Exercise Period for up
to, but not more than, the number of vested Warrant Shares at such
time, by delivery to the Company at its principal office of (i) a
notice of exercise (a "Notice of Exercise") substantially in the form
attached hereto as Exhibit A, (ii) evidence satisfactory to the
Company of the authority of the person executing such Notice of
Exercise, (iii) this Warrant, and (iv) payment of (A) the Purchase
Price multiplied by the number of shares of Common Stock for which
this Warrant is being exercised (the "Exercise Price") and (B) Tax
Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to
the order of the Company or by wire transfer to the account of the
Company. The shares so purchased shall be deemed to be issued as of
the close of business on the date on which the Company shall have
received from the Holder payment in full of the Exercise Price and Tax
Withholding Liability and the other documents referred to herein (the
"Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon
exercise of the Warrant solely for its own account for investment
purposes and not with a view to or for distributing such securities
unless such distribution has been registered with the Securities and
Exchange Commission or an applicable exemption is available therefor.
At the time this Warrant is exercised, the Company may require the
Holder to state in the Notice of Exercise such representations
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
concerning the Holder as are necessary or appropriate to assure
compliance by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of
any of the following events, the following adjustments to the rights granted
under this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of
the Company shall be increased by way of a stock dividend, stock
split, recapitalization, or other similar means, the number of
unexercised shares of Common Stock covered by this Warrant shall be
increased by the amount that a like number of shares of outstanding
Common Stock shall have been increased as a result of such stock
increase and the Purchase Price shall be adjusted by multiplying the
Purchase Price in effect immediately prior to such stock increase by a
fraction, the numerator of which shall be the number of unexercised
shares covered by this Warrant immediately prior to such stock
increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted
for such stock increase.
3.2. In case the number of outstanding shares of Common Stock of
the Company shall be reduced by recapitalization, reverse stock split
or otherwise, the number of unexercised shares covered by this Warrant
shall be reduced by the amount that a like number of shares of
outstanding Common Stock shall have been reduced as a result of such
stock reduction and the Purchase Price shall be adjusted by
multiplying the Purchase Price in effect immediately prior to such
stock reduction by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior
to such stock reduction and the denominator of which shall be the
number of unexercised shares covered by this Warrant as adjusted for
such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter
receive, upon the exercise thereof in accordance with the terms of
this Warrant, the securities or property to which the holder of the
number of shares of Common Stock then deliverable upon the exercise of
this Warrant would have been entitled upon such consolidation or
merger ("Other Securities") and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or property
thereafter deliverable upon the exercise of this Warrant.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder
shall be personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
--------------------------
Name: Roger D. Bryant
--------------------------
Title: Chairman
--------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Patrick Doualle
---------------------------------
Printed Name: Patrick Doualle
Address:
------------------------
------------------------
Fax:
--------------------
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/10/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
---------------------------
----------------------------------
(Name must conform to name of
Holder as specified on the face of
the Warrant)
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
Address of Holder:
----------------------------------
----------------------------------
----------------------------------
Date of exercise:
---------------------
- ----------------------------
/10/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
Exhibit 4.11
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 15,000 Holder: Tim Dotson
Purchase Price: $1.44
Expiration Date: Three (3) years from date of vesting
For identification only. The governing terms of this Warrant are set
forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Tim Dotson (the "Holder")
is entitled, subject to the terms set forth below, to purchase from the Company
at any time or from time to time prior to the earlier of (a) three (3) years
following the date of vesting of the Warrant or (b) the date of termination of
employment of the Holder with the Company (the "Exercise Period"), at the
Purchase Price hereinafter set forth, Fifteen Thousand (15,000) fully paid and
nonassessable shares of Common Stock (as defined below) of the Company. The
number and character of such shares of Common Stock and the Purchase Price are
subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $1.44, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" means Dial-Thru International
Corporation and any entity that shall succeed or assume the
obligations of such corporation hereunder.
(b) The term "Common Stock" means the Company's common stock,
.001 par value per share.
(c) The term "Fair Market Value" means the closing price of the
shares of Common Stock on the date of delivery of any Notice of
Exercise as reported on the Nasdaq SmallCap Market (or other exchange
on which the Common Stock is traded) or,
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
if not then traded on any exchange, then the closing price as of such
date on the over-the-counter market or, if not quoted on the over-the-
counter market, then as determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable
to compensation income arising from the exercise of this Warrant
required by applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant
Shares shall vest upon each of the first, second and third anniversary
dates of the date of this Agreement. Holder shall not have the right
to acquire any Warrant Shares pursuant to this Warrant prior the
vesting of such rights as set forth in this Section 1.1.
Notwithstanding the vesting period set forth above, nothing contained
herein shall be construed to imply that Holder is guaranteed
employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject
to the vesting requirements set forth above) by the Holder hereof in
whole or in part (but not as to a fractional share of Common Stock),
at any time and from time to time during the Exercise Period for up
to, but not more than, the number of vested Warrant Shares at such
time, by delivery to the Company at its principal office of (i) a
notice of exercise (a "Notice of Exercise") substantially in the form
attached hereto as Exhibit A, (ii) evidence satisfactory to the
Company of the authority of the person executing such Notice of
Exercise, (iii) this Warrant, and (iv) payment of (A) the Purchase
Price multiplied by the number of shares of Common Stock for which
this Warrant is being exercised (the "Exercise Price") and (B) Tax
Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to
the order of the Company or by wire transfer to the account of the
Company. The shares so purchased shall be deemed to be issued as of
the close of business on the date on which the Company shall have
received from the Holder payment in full of the Exercise Price and Tax
Withholding Liability and the other documents referred to herein (the
"Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon
exercise of the Warrant solely for its own account for investment
purposes and not with a view to or for distributing such securities
unless such distribution has been registered with the Securities and
Exchange Commission or an applicable exemption is available therefor.
At the time this Warrant is exercised, the Company may require the
Holder to state in the Notice of Exercise such representations
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
concerning the Holder as are necessary or appropriate to assure
compliance by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of
any of the following events, the following adjustments to the rights granted
under this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of
the Company shall be increased by way of a stock dividend, stock
split, recapitalization, or other similar means, the number of
unexercised shares of Common Stock covered by this Warrant shall be
increased by the amount that a like number of shares of outstanding
Common Stock shall have been increased as a result of such stock
increase and the Purchase Price shall be adjusted by multiplying the
Purchase Price in effect immediately prior to such stock increase by a
fraction, the numerator of which shall be the number of unexercised
shares covered by this Warrant immediately prior to such stock
increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted
for such stock increase.
3.2. In case the number of outstanding shares of Common Stock of
the Company shall be reduced by recapitalization, reverse stock split
or otherwise, the number of unexercised shares covered by this Warrant
shall be reduced by the amount that a like number of shares of
outstanding Common Stock shall have been reduced as a result of such
stock reduction and the Purchase Price shall be adjusted by
multiplying the Purchase Price in effect immediately prior to such
stock reduction by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior
to such stock reduction and the denominator of which shall be the
number of unexercised shares covered by this Warrant as adjusted for
such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter
receive, upon the exercise thereof in accordance with the terms of
this Warrant, the securities or property to which the holder of the
number of shares of Common Stock then deliverable upon the exercise of
this Warrant would have been entitled upon such consolidation or
merger ("Other Securities") and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or property
thereafter deliverable upon the exercise of this Warrant.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder
shall be personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
-------------------------
Name: Roger D. Bryant
-------------------------
Title: Chairman
-------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Tim Dotson
--------------------------------
Printed Name: Tim Dotson
Address:
----------------------
----------------------
Fax:
------------------
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/11/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
---------------------------
-------------------------------
(Name must conform to name of
Holder as specified on the face of
the Warrant)
By:
------------------------
Name:
------------------------
Title:
------------------------
Address of Holder:
-------------------------------
-------------------------------
-------------------------------
Date of exercise:
-----------------------
- -------------------------
/11/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.12
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
- --------------------------------------------------------------------------------
Number of Common Shares: 300,000 Holder: Lawrence Vierra
Purchase Price: $1.44
Expiration Date: Three (3) years from date of vesting
For identification only. The governing terms of this Warrant are set
forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Lawrence Vierra (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to the earlier of (a) three
(3) years following the date of vesting of the Warrant or (b) the date of
termination of employment and resignation as a director of the Holder with the
Company (the "Exercise Period"), at the Purchase Price hereinafter set forth,
Three Hundred Thousand (300,000) fully paid and nonassessable shares of Common
Stock (as defined below) of the Company. The number and character of such
shares of Common Stock and the Purchase Price are subject to adjustment as
provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $1.44, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" means Dial-Thru International
Corporation and any entity that shall succeed or assume the
obligations of such corporation hereunder.
(b) The term "Common Stock" means the Company's common stock,
.001 par value per share.
(c) The term "Fair Market Value" means the closing price of the
shares of Common Stock on the date of delivery of any Notice of
Exercise as reported on the Nasdaq SmallCap Market (or other exchange
on which the Common Stock is traded) or,
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
if not then traded on any exchange, then the closing price as of such
date on the over-the-counter market or, if not quoted on the over-the-
counter market, then as determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable
to compensation income arising from the exercise of this Warrant
required by applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 (100,000) of the
Warrant Shares shall vest immediately upon the execution and delivery
of this Warrant and shall be immediately exercisable. Holder's right
to purchase 100,000 Warrant Shares hereunder shall vest upon the first
and second anniversary dates of the date of this Agreement. Holder
shall not have the right to acquire any Warrant Shares pursuant to
this Warrant prior the vesting of such rights as set forth in this
Section 1.1. Notwithstanding the vesting period set forth above,
nothing contained herein shall be construed to imply that Holder is
guaranteed employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject
to the vesting requirements set forth above) by the Holder hereof in
whole or in part (but not as to a fractional share of Common Stock),
at any time and from time to time during the Exercise Period for up
to, but not more than, the number of vested Warrant Shares at such
time, by delivery to the Company at its principal office of (i) a
notice of exercise (a "Notice of Exercise") substantially in the form
attached hereto as Exhibit A, (ii) evidence satisfactory to the
Company of the authority of the person executing such Notice of
Exercise, (iii) this Warrant, and (iv) payment of (A) the Purchase
Price multiplied by the number of shares of Common Stock for which
this Warrant is being exercised (the "Exercise Price") and (B) Tax
Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to
the order of the Company or by wire transfer to the account of the
Company. The shares so purchased shall be deemed to be issued as of
the close of business on the date on which the Company shall have
received from the Holder payment in full of the Exercise Price and Tax
Withholding Liability and the other documents referred to herein (the
"Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon
exercise of the Warrant solely for its own account for investment
purposes and not with a view to or for distributing such securities
unless such distribution has been registered with the Securities and
Exchange Commission or an applicable exemption is available therefor.
At the time this Warrant is exercised, the
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
Company may require the Holder to state in the Notice of Exercise such
representations concerning the Holder as are necessary or appropriate
to assure compliance by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of
any of the following events, the following adjustments to the rights granted
under this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of
the Company shall be increased by way of a stock dividend, stock
split, recapitalization, or other similar means, the number of
unexercised shares of Common Stock covered by this Warrant shall be
increased by the amount that a like number of shares of outstanding
Common Stock shall have been increased as a result of such stock
increase and the Purchase Price shall be adjusted by multiplying the
Purchase Price in effect immediately prior to such stock increase by a
fraction, the numerator of which shall be the number of unexercised
shares covered by this Warrant immediately prior to such stock
increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted
for such stock increase.
3.2. In case the number of outstanding shares of Common Stock of
the Company shall be reduced by recapitalization, reverse stock split
or otherwise, the number of unexercised shares covered by this Warrant
shall be reduced by the amount that a like number of shares of
outstanding Common Stock shall have been reduced as a result of such
stock reduction and the Purchase Price shall be adjusted by
multiplying the Purchase Price in effect immediately prior to such
stock reduction by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior
to such stock reduction and the denominator of which shall be the
number of unexercised shares covered by this Warrant as adjusted for
such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter
receive, upon the exercise thereof in accordance with the terms of
this Warrant, the securities or property to which the holder of the
number of shares of Common Stock then deliverable upon the exercise of
this Warrant would have been entitled upon such consolidation or
merger ("Other Securities") and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
nearly as reasonably may be, in relation to any securities or property
thereafter deliverable upon the exercise of this Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder
shall be personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
DATED as of December 22, 1999.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
-------------------------
Name: Roger D. Bryant
-------------------------
Title: Chairman
-------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Lawrence Vierra
--------------------------------
Printed Name: Lawrence Vierra
Address:
---------------------
---------------------
Fax:
-----------------
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/12/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
-----------------------------
----------------------------------
(Name must conform to name of
Holder as specified on the face of
the Warrant)
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
Address of Holder:
----------------------------------
----------------------------------
----------------------------------
Date of exercise:
--------------------------
- -----------------------
/12/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.13
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
DATED: March 1, 2000
- --------------------------------------------------------------------------------
Number of Common Shares: 50,000 Holder: Alvaro Restrepo
Purchase Price: $.46
Expiration Date: Two (2) years from date of vesting
For identification only. The governing terms of this Warrant
are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Alvaro Restrepo (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to two (2) years following
the date of vesting of the Warrant at the Purchase Price hereinafter set forth,
Fifty Thousand (50,000) fully paid and nonassessable shares of Common Stock (as
defined below) of the Company. This Warrant is being executed and delivered in
connection with the Distribution Agreement (as defined below), and modifies and
restates in its entirety the terms of the Common Stock Purchase Warrant dated
July 15, 1999. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $.46, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock,
.001 par value per share.
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
(c) The term "Consolidated Revenues" means the combined revenues
of the Distribution Group from the sales of the Company's prepaid
phone cards.
(d) The term "Distribution Agreement " means the Distribution
Agreement of even date herewith between the Company and Holder.
(e) The term "Distribution Group" means the following
independent distributors of the Company's prepaid phone cards: Juan
Carlos Gaviria, Alvaro Restrepo, Paul Saunier, Eric Ifflen, Emilio
Martinez, Carlos Bedoya and Alfredo Polo.
(f) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable
to compensation income arising from the exercise of this Warrant
required by applicable law to be withheld by the Company.
(g) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 50% (25,000) of the
Warrant Shares shall vest immediately upon the execution and delivery
of this Warrant and shall be immediately exercisable. Holder's right
to purchase the remaining 50% (25,000) Warrant Shares hereunder shall
vest upon the Distributor Group's achieving Consolidated Revenues of
in excess of $10 million for a period of three consecutive calendar
months on or before February 28, 2002. Holder shall not have any right
to acquire any Warrant Shares pursuant to this Warrant prior to the
vesting of such rights as set forth in this Section 1.1. If the
Distributor Group fails to achieve Consolidated Revenues of in excess
of $10 million in three consecutive calendar months prior to February
28, 2002, then Holder's right to acquire the remaining 25,000 Warrant
Shares pursuant to the terms of this Warrant shall fail to vest and
Holder shall have no right to acquire such shares hereunder.
1.2. Method of Exercise. This Warrant may be exercised
(subject to the vesting requirements set forth above) by the Holder
hereof in whole or in part (but not as to a fractional share of Common
Stock), at any time and from time to time during the Exercise Period
for up to, but not more than, the number of vested Warrant Shares at
such time, by delivery to the Company at its principal office of (i) a
notice of exercise (a "Notice of Exercise") substantially in the form
attached hereto as Exhibit A, (ii) evidence satisfactory to the
Company of the authority of the person executing such Notice of
Exercise, (iii) this Warrant, and (iv) payment of (A) the Purchase
Price multiplied by the number of shares of Common Stock for which
this Warrant is being exercised (the "Exercise Price") and (B) Tax
Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to
the order of the Company or by wire transfer to the account of the
Company. The shares so
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
purchased shall be deemed to be issued as of the close of business on
the date on which the Company shall have received from the Holder
payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
Notwithstanding the foregoing, Holder shall not be entitled to
exercise this Warrant, in whole or in part, unless and until Holder is
current in all payment obligations to the Company, whether arising
under the Distribution Agreement or otherwise.
1.3. Regulation D Restrictions. The Holder hereof represents
and warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon
exercise of the Warrant solely for its own account for investment
purposes and not with a view to or for distributing such securities
unless such distribution has been registered with the Securities and
Exchange Commission or an applicable exemption is available therefor.
At the time this Warrant is exercised, the Company may require the
Holder to state in the Notice of Exercise such representations
concerning the Holder as are necessary or appropriate to assure
compliance by the Holder with the Securities Act.
1.4. Resale Restrictions. The Holder hereof covenants and
agrees with the Company that it will not, without the prior written
consent of the Company, sell more than 5,000 shares per month during
the two-year period following any exercise of this Warrant by Holder.
2. Delivery of Stock Certificates, etc., on Exercise. As soon
as practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of
any of the following events, the following adjustments to the rights granted
under this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock
of the Company shall be increased by way of a stock dividend, stock
split, recapitalization, or other similar means, the number of
unexercised shares of Common Stock covered by this Warrant shall be
increased by the amount that a like number of shares of outstanding
Common Stock shall have been increased as a result of such stock
increase and the Purchase Price shall be adjusted by multiplying the
Purchase Price in effect immediately prior to such stock increase by a
fraction, the numerator of which shall be the number of unexercised
shares covered by this Warrant immediately prior to such stock
increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted
for such stock increase.
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page3 (Dial-Thru International Corporation)
<PAGE>
3.2. In case the number of outstanding shares of Common Stock
of the Company shall be reduced by recapitalization, reverse stock
split or otherwise, the number of unexercised shares covered by this
Warrant shall be reduced by the amount that a like number of shares of
outstanding Common Stock shall have been reduced as a result of such
stock reduction and the Purchase Price shall be adjusted by
multiplying the Purchase Price in effect immediately prior to such
stock reduction by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior
to such stock reduction and the denominator of which shall be the
number of unexercised shares covered by this Warrant as adjusted for
such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter
receive, upon the exercise thereof in accordance with the terms of
this Warrant, the securities or property to which the holder of the
number of shares of Common Stock then deliverable upon the exercise of
this Warrant would have been entitled upon such consolidation or
merger ("Other Securities") and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or property
thereafter deliverable upon the exercise of this Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
Warrant, all shares of Common Stock (or Other Securities) from time to time
issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder
shall be personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
----------------------------------
Name: Roger D. Bryant
----------------------------------
Title: Chairman
----------------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
/s/ Alvaro Restrepo
-----------------------------------------
Printed Name: Alvaro Restrepo
Address:
--------------------------------
--------------------------------
Fax:
----------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/13/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
----------------------------
-----------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Address of Holder:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Date of exercise:
--------------------
- --------------------
/13/ Insert the number of shares of Common Stock as to which the
accompanying Warrant is being exercised. In the case of a partial exercise, a
new Warrant or Warrants will be issued and delivered, representing the
unexercised portion of the accompanying Warrant, to the holder surrendering the
same.
<PAGE>
EXHIBIT 4.14
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
DATED: March 1, 2000
- --------------------------------------------------------------------------------
Number of Common Shares: 50,000 Holder: Paul Saunier
Purchase Price: $.53
Expiration Date: Two (2) years from date of vesting
For identification only. The governing terms of this Warrant
are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Paul Saunier (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to two (2) years following
the date of vesting of the Warrant at the Purchase Price hereinafter set forth,
Fifty Thousand (50,000) fully paid and nonassessable shares of Common Stock (as
defined below) of the Company. This Warrant is being executed and delivered in
connection with the Distribution Agreement (as defined below), and modifies and
restates in its entirety the terms of the Common Stock Purchase Warrant dated
June 16, 1998. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $.53, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock,
.001 par value per share.
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
(c) The term "Consolidated Revenues" means the combined revenues
of the Distribution Group from the sales of the Company's prepaid
phone cards.
(d) The term "Distribution Agreement " means the Distribution
Agreement of even date herewith between the Company and Holder.
(e) The term "Distribution Group" means the following
independent distributors of the Company's prepaid phone cards: Juan
Carlos Gaviria, Alvaro Restrepo, Paul Saunier, Eric Ifflen, Emilio
Martinez, Carlos Bedoya and Alfredo Polo.
(f) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable
to compensation income arising from the exercise of this Warrant
required by applicable law to be withheld by the Company.
(g) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 50% (25,000) of the
Warrant Shares shall vest immediately upon the execution and delivery
of this Warrant and shall be immediately exercisable. Holder's right
to purchase the remaining 50% (25,000) Warrant Shares hereunder shall
vest upon the Distributor Group's achieving Consolidated Revenues of
in excess of $10 million for a period of three consecutive calendar
months on or before February 28, 2002. Holder shall not have any right
to acquire any Warrant Shares pursuant to this Warrant prior to the
vesting of such rights as set forth in this Section 1.1. If the
Distributor Group fails to achieve Consolidated Revenues of in excess
of $10 million in three consecutive calendar months prior to February
28, 2002, then Holder's right to acquire the remaining 25,000 Warrant
Shares pursuant to the terms of this Warrant shall fail to vest and
Holder shall have no right to acquire such shares hereunder.
1.2. Method of Exercise. This Warrant may be exercised
(subject to the vesting requirements set forth above) by the Holder
hereof in whole or in part (but not as to a fractional share of Common
Stock), at any time and from time to time during the Exercise Period
for up to, but not more than, the number of vested Warrant Shares at
such time, by delivery to the Company at its principal office of (i) a
notice of exercise (a "Notice of Exercise") substantially in the form
attached hereto as Exhibit A, (ii) evidence satisfactory to the
Company of the authority of the person executing such Notice of
Exercise, (iii) this Warrant, and (iv) payment of (A) the Purchase
Price multiplied by the number of shares of Common Stock for which
this Warrant is being exercised (the "Exercise Price") and (B) Tax
Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to
the order of the Company or by wire transfer to the account of the
Company. The shares so
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
purchased shall be deemed to be issued as of the close of business on
the date on which the Company shall have received from the Holder
payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
Notwithstanding the foregoing, Holder shall not be entitled to
exercise this Warrant, in whole or in part, unless and until Holder is
current in all payment obligations to the Company, whether arising
under the Distribution Agreement or otherwise.
1.3. Regulation D Restrictions. The Holder hereof represents
and warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon
exercise of the Warrant solely for its own account for investment
purposes and not with a view to or for distributing such securities
unless such distribution has been registered with the Securities and
Exchange Commission or an applicable exemption is available therefor.
At the time this Warrant is exercised, the Company may require the
Holder to state in the Notice of Exercise such representations
concerning the Holder as are necessary or appropriate to assure
compliance by the Holder with the Securities Act.
1.4. Resale Restrictions. The Holder hereof covenants and
agrees with the Company that it will not, without the prior written
consent of the Company, sell more than 5,000 shares per month during
the two-year period following any exercise of this Warrant by Holder.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of
any of the following events, the following adjustments to the rights granted
under this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock
of the Company shall be increased by way of a stock dividend, stock
split, recapitalization, or other similar means, the number of
unexercised shares of Common Stock covered by this Warrant shall be
increased by the amount that a like number of shares of outstanding
Common Stock shall have been increased as a result of such stock
increase and the Purchase Price shall be adjusted by multiplying the
Purchase Price in effect immediately prior to such stock increase by a
fraction, the numerator of which shall be the number of unexercised
shares covered by this Warrant immediately prior to such stock
increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted
for such stock increase.
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
3.2. In case the number of outstanding shares of Common Stock
of the Company shall be reduced by recapitalization, reverse stock
split or otherwise, the number of unexercised shares covered by this
Warrant shall be reduced by the amount that a like number of shares of
outstanding Common Stock shall have been reduced as a result of such
stock reduction and the Purchase Price shall be adjusted by
multiplying the Purchase Price in effect immediately prior to such
stock reduction by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior
to such stock reduction and the denominator of which shall be the
number of unexercised shares covered by this Warrant as adjusted for
such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter
receive, upon the exercise thereof in accordance with the terms of
this Warrant, the securities or property to which the holder of the
number of shares of Common Stock then deliverable upon the exercise of
this Warrant would have been entitled upon such consolidation or
merger ("Other Securities") and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or property
thereafter deliverable upon the exercise of this Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
Warrant, all shares of Common Stock (or Other Securities) from time to time
issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder
shall be personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
----------------------------------
Name: Roger D. Bryant
----------------------------------
Title: Chairman
----------------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
/s/ Paul Saunier
-----------------------------------------
Printed Name: Paul Saunier
Address:
--------------------------------
--------------------------------
Fax:
----------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/14/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
----------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Address of Holder:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Date of exercise:
--------------------
- --------------------
/14/ Insert the number of shares of Common Stock as to which the
accompanying Warrant is being exercised. In the case of a partial exercise, a
new Warrant or Warrants will be issued and delivered, representing the
unexercised portion of the accompanying Warrant, to the holder surrendering the
same.
<PAGE>
EXHIBIT 4.15
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
DATED: March 1, 2000
- --------------------------------------------------------------------------------
Number of Common Shares: 50,000 Holder: Eric Iffland
Purchase Price: $.55
Expiration Date: Two (2) years from date of vesting
For identification only. The governing terms of this Warrant
are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Eric Ifflen (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to two (2) years following
the date of vesting of the Warrant at the Purchase Price hereinafter set forth,
Fifty Thousand (50,000) fully paid and nonassessable shares of Common Stock (as
defined below) of the Company. This Warrant is being executed and delivered in
connection with the Distribution Agreement (as defined below), and modifies and
restates in its entirety the terms of the Common Stock Purchase Warrant dated
August 16, 1999. The number and character of such shares of Common Stock and
the Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $.55, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock,
.001 par value per share.
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
(c) The term "Consolidated Revenues" means the combined revenues
of the Distribution Group from the sales of the Company's prepaid
phone cards.
(d) The term "Distribution Agreement " means the Distribution
Agreement of even date herewith between the Company and Holder.
(e) The term "Distribution Group" means the following
independent distributors of the Company's prepaid phone cards: Juan
Carlos Gaviria, Alvaro Restrepo, Paul Saunier, Eric Ifflen, Emilio
Martinez, Carlos Bedoya and Alfredo Polo.
(f) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable
to compensation income arising from the exercise of this Warrant
required by applicable law to be withheld by the Company.
(g) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 50% (25,000) of the
Warrant Shares shall vest immediately upon the execution and delivery
of this Warrant and shall be immediately exercisable. Holder's right
to purchase the remaining 50% (25,000) Warrant Shares hereunder shall
vest upon the Distributor Group's achieving Consolidated Revenues of
in excess of $10 million for a period of three consecutive calendar
months on or before February 28, 2002. Holder shall not have any right
to acquire any Warrant Shares pursuant to this Warrant prior to the
vesting of such rights as set forth in this Section 1.1. If the
Distributor Group fails to achieve Consolidated Revenues of in excess
of $10 million in three consecutive calendar months prior to February
28, 2002, then Holder's right to acquire the remaining 25,000 Warrant
Shares pursuant to the terms of this Warrant shall fail to vest and
Holder shall have no right to acquire such shares hereunder.
1.2. Method of Exercise. This Warrant may be exercised
(subject to the vesting requirements set forth above) by the Holder
hereof in whole or in part (but not as to a fractional share of Common
Stock), at any time and from time to time during the Exercise Period
for up to, but not more than, the number of vested Warrant Shares at
such time, by delivery to the Company at its principal office of (i) a
notice of exercise (a "Notice of Exercise") substantially in the form
attached hereto as Exhibit A, (ii) evidence satisfactory to the
Company of the authority of the person executing such Notice of
Exercise, (iii) this Warrant, and (iv) payment of (A) the Purchase
Price multiplied by the number of shares of Common Stock for which
this Warrant is being exercised (the "Exercise Price") and (B) Tax
Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to
the order of the Company or by wire transfer to the account of the
Company. The shares so
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
purchased shall be deemed to be issued as of the close of business on
the date on which the Company shall have received from the Holder
payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
Notwithstanding the foregoing, Holder shall not be entitled to
exercise this Warrant, in whole or in part, unless and until Holder is
current in all payment obligations to the Company, whether arising
under the Distribution Agreement or otherwise.
1.3. Regulation D Restrictions. The Holder hereof represents
and warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon
exercise of the Warrant solely for its own account for investment
purposes and not with a view to or for distributing such securities
unless such distribution has been registered with the Securities and
Exchange Commission or an applicable exemption is available therefor.
At the time this Warrant is exercised, the Company may require the
Holder to state in the Notice of Exercise such representations
concerning the Holder as are necessary or appropriate to assure
compliance by the Holder with the Securities Act.
1.4. Resale Restrictions. The Holder hereof covenants and
agrees with the Company that it will not, without the prior written
consent of the Company, sell more than 5,000 shares per month during
the two-year period following any exercise of this Warrant by Holder.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of
any of the following events, the following adjustments to the rights granted
under this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock
of the Company shall be increased by way of a stock dividend, stock
split, recapitalization, or other similar means, the number of
unexercised shares of Common Stock covered by this Warrant shall be
increased by the amount that a like number of shares of outstanding
Common Stock shall have been increased as a result of such stock
increase and the Purchase Price shall be adjusted by multiplying the
Purchase Price in effect immediately prior to such stock increase by a
fraction, the numerator of which shall be the number of unexercised
shares covered by this Warrant immediately prior to such stock
increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted
for such stock increase.
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
3.2. In case the number of outstanding shares of Common Stock
of the Company shall be reduced by recapitalization, reverse stock
split or otherwise, the number of unexercised shares covered by this
Warrant shall be reduced by the amount that a like number of shares of
outstanding Common Stock shall have been reduced as a result of such
stock reduction and the Purchase Price shall be adjusted by
multiplying the Purchase Price in effect immediately prior to such
stock reduction by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior
to such stock reduction and the denominator of which shall be the
number of unexercised shares covered by this Warrant as adjusted for
such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter
receive, upon the exercise thereof in accordance with the terms of
this Warrant, the securities or property to which the holder of the
number of shares of Common Stock then deliverable upon the exercise of
this Warrant would have been entitled upon such consolidation or
merger ("Other Securities") and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or property
thereafter deliverable upon the exercise of this Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
Warrant, all shares of Common Stock (or Other Securities) from time to time
issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder
shall be personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
----------------------------------
Name: Roger D. Bryant
----------------------------------
Title: Chairman
----------------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
/s/ Eric Iffland
-----------------------------------------
Printed Name: Eric Iffland
Address:
--------------------------------
--------------------------------
Fax:
----------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/15/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
----------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Address of Holder:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Date of exercise:
--------------------
- --------------------
/15/ Insert the number of shares of Common Stock as to which the
accompanying Warrant is being exercised. In the case of a partial exercise, a
new Warrant or Warrants will be issued and delivered, representing the
unexercised portion of the accompanying Warrant, to the holder surrendering the
same.
<PAGE>
EXHIBIT 4.16
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
DATED: March 1, 2000
- --------------------------------------------------------------------------------
Number of Common Shares: 50,000 Holder: Emilio Martinez
Purchase Price: $.80
Expiration Date: Two (2) years from date of vesting
For identification only. The governing terms of this Warrant
are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Emilio Martinez (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to two (2) years following
the date of vesting of the Warrant at the Purchase Price hereinafter set forth,
Fifty Thousand (50,000) fully paid and nonassessable shares of Common Stock (as
defined below) of the Company. This Warrant is being executed and delivered in
connection with the Distribution Agreement (as defined below), and modifies and
restates in its entirety the terms of the Common Stock Purchase Warrant dated
October 1, 1999. The number and character of such shares of Common Stock and
the Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $.80, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock,
.001 par value per share.
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
(c) The term "Consolidated Revenues" means the combined revenues
of the Distribution Group from the sales of the Company's prepaid
phone cards.
(d) The term "Distribution Agreement " means the Distribution
Agreement of even date herewith between the Company and Holder.
(e) The term "Distribution Group" means the following
independent distributors of the Company's prepaid phone cards: Juan
Carlos Gaviria, Alvaro Restrepo, Paul Saunier, Eric Ifflen, Emilio
Martinez, Carlos Bedoya and Alfredo Polo.
(f) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable
to compensation income arising from the exercise of this Warrant
required by applicable law to be withheld by the Company.
(g) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 50% (25,000) of the
Warrant Shares shall vest immediately upon the execution and delivery
of this Warrant and shall be immediately exercisable. Holder's right
to purchase the remaining 50% (25,000) Warrant Shares hereunder shall
vest upon the Distributor Group's achieving Consolidated Revenues of
in excess of $10 million for a period of three consecutive calendar
months on or before February 28, 2002. Holder shall not have any right
to acquire any Warrant Shares pursuant to this Warrant prior to the
vesting of such rights as set forth in this Section 1.1. If the
Distributor Group fails to achieve Consolidated Revenues of in excess
of $10 million in three consecutive calendar months prior to February
28, 2002, then Holder's right to acquire the remaining 25,000 Warrant
Shares pursuant to the terms of this Warrant shall fail to vest and
Holder shall have no right to acquire such shares hereunder.
1.2. Method of Exercise. This Warrant may be exercised
(subject to the vesting requirements set forth above) by the Holder
hereof in whole or in part (but not as to a fractional share of Common
Stock), at any time and from time to time during the Exercise Period
for up to, but not more than, the number of vested Warrant Shares at
such time, by delivery to the Company at its principal office of (i) a
notice of exercise (a "Notice of Exercise") substantially in the form
attached hereto as Exhibit A, (ii) evidence satisfactory to the
Company of the authority of the person executing such Notice of
Exercise, (iii) this Warrant, and (iv) payment of (A) the Purchase
Price multiplied by the number of shares of Common Stock for which
this Warrant is being exercised (the "Exercise Price") and (B) Tax
Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to
the order of the Company or by wire transfer to the account of the
Company. The shares so
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
purchased shall be deemed to be issued as of the close of business on
the date on which the Company shall have received from the Holder
payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
Notwithstanding the foregoing, Holder shall not be entitled to
exercise this Warrant, in whole or in part, unless and until Holder is
current in all payment obligations to the Company, whether arising
under the Distribution Agreement or otherwise.
1.3. Regulation D Restrictions. The Holder hereof represents
and warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon
exercise of the Warrant solely for its own account for investment
purposes and not with a view to or for distributing such securities
unless such distribution has been registered with the Securities and
Exchange Commission or an applicable exemption is available therefor.
At the time this Warrant is exercised, the Company may require the
Holder to state in the Notice of Exercise such representations
concerning the Holder as are necessary or appropriate to assure
compliance by the Holder with the Securities Act.
1.4. Resale Restrictions. The Holder hereof covenants and agrees
with the Company that it will not, without the prior written consent
of the Company, sell more than 5,000 shares per month during the two-
year period following any exercise of this Warrant by Holder.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of
any of the following events, the following adjustments to the rights granted
under this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock
of the Company shall be increased by way of a stock dividend, stock
split, recapitalization, or other similar means, the number of
unexercised shares of Common Stock covered by this Warrant shall be
increased by the amount that a like number of shares of outstanding
Common Stock shall have been increased as a result of such stock
increase and the Purchase Price shall be adjusted by multiplying the
Purchase Price in effect immediately prior to such stock increase by a
fraction, the numerator of which shall be the number of unexercised
shares covered by this Warrant immediately prior to such stock
increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted
for such stock increase.
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
3.2. In case the number of outstanding shares of Common Stock
of the Company shall be reduced by recapitalization, reverse stock
split or otherwise, the number of unexercised shares covered by this
Warrant shall be reduced by the amount that a like number of shares of
outstanding Common Stock shall have been reduced as a result of such
stock reduction and the Purchase Price shall be adjusted by
multiplying the Purchase Price in effect immediately prior to such
stock reduction by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior
to such stock reduction and the denominator of which shall be the
number of unexercised shares covered by this Warrant as adjusted for
such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter
receive, upon the exercise thereof in accordance with the terms of
this Warrant, the securities or property to which the holder of the
number of shares of Common Stock then deliverable upon the exercise of
this Warrant would have been entitled upon such consolidation or
merger ("Other Securities") and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or property
thereafter deliverable upon the exercise of this Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
Warrant, all shares of Common Stock (or Other Securities) from time to time
issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder
shall be personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
----------------------------------
Name: Roger D. Bryant
----------------------------------
Title: Chairman
----------------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
/s/ Emilio Martinez
-----------------------------------------
Printed Name: Emilio Martinez
Address:
--------------------------------
--------------------------------
Fax:
----------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________/16/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
----------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Address of Holder:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Date of exercise:
--------------------
- --------------------
/16/ Insert the number of shares of Common Stock as to which the
accompanying Warrant is being exercised. In the case of a partial exercise, a
new Warrant or Warrants will be issued and delivered, representing the
unexercised portion of the accompanying Warrant, to the holder surrendering the
same.
<PAGE>
EXHIBIT 4.17
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM
THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
DATED: March 1, 2000
<TABLE>
- -------------------------------------------------------------------------------------------
<S> <C> <C>
Number of Common Shares: 50,000 Holder: Alfredo Polo
Purchase Price: $.81
Expiration Date: Two (2) years from date of vesting
For identification only. The governing terms of this Warrant are set forth below.
- -------------------------------------------------------------------------------------------
</TABLE>
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Alfredo Polo (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to two (2) years following
the date of vesting of the Warrant at the Purchase Price hereinafter set forth,
Fifty Thousand (50,000) fully paid and nonassessable shares of Common Stock (as
defined below) of the Company. This Warrant is being executed and delivered in
connection with the Distribution Agreement (as defined below). The number and
character of such shares of Common Stock and the Purchase Price are subject to
adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $.81, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock, .001
par value per share.
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
(c) The term "Consolidated Revenues" means the combined revenues
of the Distribution Group from the sales of the Company's prepaid phone
cards.
(d) The term "Distribution Agreement " means the Distribution
Agreement of even date herewith between the Company and Holder.
(e) The term "Distribution Group" means the following independent
distributors of the Company's prepaid phone cards: Juan Carlos Gaviria,
Alvaro Restrepo, Paul Saunier, Eric Ifflen, Emilio Martinez, Carlos Bedoya
and Alfredo Polo.
(f) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(g) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 50% (25,000) of the Warrant
Shares shall vest immediately upon the execution and delivery of this
Warrant and shall be immediately exercisable. Holder's right to purchase
the remaining 50% (25,000) Warrant Shares hereunder shall vest upon the
Distributor Group's achieving Consolidated Revenues of in excess of $10
million for a period of three consecutive calendar months on or before
February 28, 2002. Holder shall not have any right to acquire any Warrant
Shares pursuant to this Warrant prior to the vesting of such rights as set
forth in this Section 1.1. If the Distributor Group fails to achieve
Consolidated Revenues of in excess of $10 million in three consecutive
calendar months prior to February 28, 2002, then Holder's right to acquire
the remaining 25,000 Warrant Shares pursuant to the terms of this Warrant
shall fail to vest and Holder shall have no right to acquire such shares
hereunder.
1.2. Method of Exercise. This Warrant may be exercised (subject to
the vesting requirements set forth above) by the Holder hereof in whole or
in part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of the Company or by wire transfer to the account of the Company. The
shares so
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
purchased shall be deemed to be issued as of the close of business on the
date on which the Company shall have received from the Holder payment in
full of the Exercise Price and Tax Withholding Liability and the other
documents referred to herein (the "Exercise Date"). Notwithstanding the
foregoing, Holder shall not be entitled to exercise this Warrant, in whole
or in part, unless and until Holder is current in all payment obligations
to the Company, whether arising under the Distribution Agreement or
otherwise.
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations concerning the Holder as are necessary or appropriate to
assure compliance by the Holder with the Securities Act.
1.4. Resale Restrictions. The Holder hereof covenants and agrees
with the Company that it will not, without the prior written consent of the
Company, sell more than 5,000 shares per month during the two-year period
following any exercise of this Warrant by Holder.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant.
The Company will at all times reserve and keep available, solely for issuance
and delivery on the exercise of this
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
Warrant, all shares of Common Stock (or Other Securities) from time to time
issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
--------------------------------
Name: Roger D. Bryant
------------------------------
Title: Chairman
-----------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Alfredo Polo
-----------------------------------
Printed Name: Alfredo Polo
Address:
-------------------------
-------------------------
Fax:
---------------------
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
___________/17/ shares of Common Stock (as defined in such Warrant) and herewith
makes payment therefor (including any Tax Withholding Liability) of $__________,
as of the date written below. The undersigned requests that the certificates for
such shares of Common Stock be issued in the name of, and delivered to,
_______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
----------------------------
---------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address of Holder:
---------------------------------------
---------------------------------------
---------------------------------------
Date of exercise:
----------------------
- --------------------------
/17/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.18
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
DATED: March 1, 2000
- --------------------------------------------------------------------------------
Number of Common Shares: 50,000 Holder: Carlos Bedoya
Purchase Price: $.81
Expiration Date: Two (2) years from date of vesting
For identification only. The governing terms of
this Warrant are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Carlos Bedoya (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to two (2) years following
the date of vesting of the Warrant at the Purchase Price hereinafter set forth,
Fifty Thousand (50,000) fully paid and nonassessable shares of Common Stock (as
defined below) of the Company. This Warrant is being executed and delivered in
connection with the Distribution Agreement (as defined below). The number and
character of such shares of Common Stock and the Purchase Price are subject to
adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $.81, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock, .001
par value per share.
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
(c) The term "Consolidated Revenues" means the combined revenues
of the Distribution Group from the sales of the Company's prepaid phone
cards.
(d) The term "Distribution Agreement " means the Distribution
Agreement of even date herewith between the Company and Holder.
(e) The term "Distribution Group" means the following independent
distributors of the Company's prepaid phone cards: Juan Carlos Gaviria,
Alvaro Restrepo, Paul Saunier, Eric Ifflen, Emilio Martinez, Carlos Bedoya
and Alfredo Polo.
(f) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(g) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 50% (25,000) of the Warrant
Shares shall vest immediately upon the execution and delivery of this
Warrant and shall be immediately exercisable. Holder's right to purchase
the remaining 50% (25,000) Warrant Shares hereunder shall vest upon the
Distributor Group's achieving Consolidated Revenues of in excess of $10
million for a period of three consecutive calendar months on or before
February 28, 2002. Holder shall not have any right to acquire any Warrant
Shares pursuant to this Warrant prior to the vesting of such rights as set
forth in this Section 1.1. If the Distributor Group fails to achieve
Consolidated Revenues of in excess of $10 million in three consecutive
calendar months prior to February 28, 2002, then Holder's right to acquire
the remaining 25,000 Warrant Shares pursuant to the terms of this Warrant
shall fail to vest and Holder shall have no right to acquire such shares
hereunder.
1.2. Method of Exercise. This Warrant may be exercised (subject to
the vesting requirements set forth above) by the Holder hereof in whole or
in part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of the Company or by wire transfer to the account of the Company. The
shares so
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
purchased shall be deemed to be issued as of the close of business on the
date on which the Company shall have received from the Holder payment in
full of the Exercise Price and Tax Withholding Liability and the other
documents referred to herein (the "Exercise Date"). Notwithstanding the
foregoing, Holder shall not be entitled to exercise this Warrant, in whole
or in part, unless and until Holder is current in all payment obligations
to the Company, whether arising under the Distribution Agreement or
otherwise.
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations concerning the Holder as are necessary or appropriate to
assure compliance by the Holder with the Securities Act.
1.4. Resale Restrictions. The Holder hereof covenants and agrees with
the Company that it will not, without the prior written consent of the
Company, sell more than 5,000 shares per month during the two-year period
following any exercise of this Warrant by Holder.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant.
The Company will at all times reserve and keep available, solely for issuance
and delivery on the exercise of this
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
Warrant, all shares of Common Stock (or Other Securities) from time to time
issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
--------------------------------
Name: Roger D. Bryant
------------------------------
Title: Chairman
-----------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Carlos Bedoya
-----------------------------------
Printed Name: Carlos Bedoya
Address:
-------------------------
-------------------------
Fax:
---------------------
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
__________/18/ shares of Common Stock (as defined in such Warrant) and herewith
makes payment therefor (including any Tax Withholding Liability) of $__________,
as of the date written below. The undersigned requests that the certificates for
such shares of Common Stock be issued in the name of, and delivered to,
_______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
------------------------------
---------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address of Holder:
---------------------------------------
---------------------------------------
---------------------------------------
Date of exercise:
---------------------
/18/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.19
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
(No. 1)
DATED: March 1, 2000
<TABLE>
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
Number of Common Shares: 50,000 Holder: Juan Carlos Gaviria
Purchase Price: $.88
Expiration Date: Two (2) years from date of vesting
For identification only. The governing terms of this Warrant are set forth below.
- --------------------------------------------------------------------------------------------------
</TABLE>
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Juan Carlos Gaviria (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to two (2) years following
the date of vesting of the Warrant at the Purchase Price hereinafter set forth,
Fifty Thousand (50,000) fully paid and nonassessable shares of Common Stock (as
defined below) of the Company. This Warrant is being executed and delivered in
connection with the Distribution Agreement (as defined below), and modifies and
restates in its entirety the terms of the Common Stock Purchase Warrant dated
October 26, 1999 previously issued to LGIT, Inc. The number and character of
such shares of Common Stock and the Purchase Price are subject to adjustment as
provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $.88, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock, .001
par value per share.
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
(c) The term "Consolidated Revenues" means the combined revenues
of the Distribution Group from the sales of the Company's prepaid phone
cards.
(d) The term "Distribution Agreement " means the Distribution
Agreement of even date herewith between the Company and Holder.
(e) The term "Distribution Group" means the following independent
distributors of the Company's prepaid phone cards: Juan Carlos Gaviria,
Alvaro Restrepo, Paul Saunier, Eric Ifflen, Emilio Martinez, Carlos Bedoya
and Alfredo Polo.
(f) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(g) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 50% (25,000) of the Warrant
Shares shall vest immediately upon the execution and delivery of this
Warrant and shall be immediately exercisable. Holder's right to purchase
the remaining 50% (25,000) Warrant Shares hereunder shall vest upon the
Distributor Group's achieving Consolidated Revenues of in excess of $10
million for a period of three consecutive calendar months on or before
February 28, 2002. Holder shall not have any right to acquire any Warrant
Shares pursuant to this Warrant prior to the vesting of such rights as set
forth in this Section 1.1. If the Distributor Group fails to achieve
Consolidated Revenues of in excess of $10 million in three consecutive
calendar months prior to February 28, 2002, then Holder's right to acquire
the remaining 25,000 Warrant Shares pursuant to the terms of this Warrant
shall fail to vest and Holder shall have no right to acquire such shares
hereunder.
1.2. Method of Exercise. This Warrant may be exercised (subject to
the vesting requirements set forth above) by the Holder hereof in whole or
in part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
the Company or by wire transfer to the account of the Company. The shares
so purchased shall be deemed to be issued as of the close of business on
the date on which the Company shall have received from the Holder payment
in full of the Exercise Price and Tax Withholding Liability and the other
documents referred to herein (the "Exercise Date"). Notwithstanding the
foregoing, Holder shall not be entitled to exercise this Warrant, in whole
or in part, unless and until Holder is current in all payment obligations
to the Company, whether arising under the Distribution Agreement or
otherwise.
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations concerning the Holder as are necessary or appropriate to
assure compliance by the Holder with the Securities Act.
1.4. Resale Restrictions. The Holder hereof covenants and agrees
with the Company that it will not, without the prior written consent of the
Company, sell more than 5,000 shares per month during the two-year period
following any exercise of this Warrant by Holder.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
Warrant, all shares of Common Stock (or Other Securities) from time to time
issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
--------------------------------
Name: Roger D. Bryant
------------------------------
Title: Chairman
-----------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Juan Carlos Gaviria
-----------------------------------
Printed Name: Juan Carlos Gaviria
Address:
--------------------------
--------------------------
Fax:
----------------------
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
___________/19/ shares of Common Stock (as defined in such Warrant) and herewith
makes payment therefor (including any Tax Withholding Liability) of $__________,
as of the date written below. The undersigned requests that the certificates for
such shares of Common Stock be issued in the name of, and delivered to,
_______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
----------------------------
---------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address of Holder:
---------------------------------------
---------------------------------------
---------------------------------------
Date of exercise:
-----------------------
- --------------------------
/19/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 4.20
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
(No. 2)
DATED: March 1, 2000
- --------------------------------------------------------------------------------
Number of Common Shares: 50,000 Holder: Juan Carlos Gaviria
Purchase Price: $.88
Expiration Date: Two (2) years from date of vesting
For identification only. The governing terms of
this Warrant are set forth below.
- --------------------------------------------------------------------------------
DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Juan Carlos Gaviria (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to two (2) years following
the date of vesting of the Warrant at the Purchase Price hereinafter set forth,
Fifty Thousand (50,000) fully paid and nonassessable shares of Common Stock (as
defined below) of the Company. This Warrant is being executed and delivered in
connection with the Distribution Agreement (as defined below), and modifies and
restates in its entirety the terms of the Common Stock Purchase Warrant dated
October 26, 1999 previously issued to LGIT, Inc. The number and character of
such shares of Common Stock and the Purchase Price are subject to adjustment as
provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $.88, provided, however,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation
and any entity that shall succeed or assume the obligations of such
corporation hereunder.
(b) The term "Common Stock" means the Company's common stock, .001
par value per share.
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
<PAGE>
(c) The term "Consolidated Revenues" means the combined revenues
of the Distribution Group from the sales of the Company's prepaid phone
cards.
(d) The term "Distribution Agreement " means the Distribution
Agreement of even date herewith between the Company and Holder.
(e) The term "Distribution Group" means the following independent
distributors of the Company's prepaid phone cards: Juan Carlos Gaviria,
Alvaro Restrepo, Paul Saunier, Eric Ifflen, Emilio Martinez, Carlos Bedoya
and Alfredo Polo.
(f) The term "Tax Withholding Liability" means all federal and
state income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(g) The term "Warrant Shares" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 50% (25,000) of the Warrant
Shares shall vest immediately upon the execution and delivery of this
Warrant and shall be immediately exercisable. Holder's right to purchase
the remaining 50% (25,000) Warrant Shares hereunder shall vest upon the
Distributor Group's achieving Consolidated Revenues of in excess of $10
million for a period of three consecutive calendar months on or before
February 28, 2002. Holder shall not have any right to acquire any Warrant
Shares pursuant to this Warrant prior to the vesting of such rights as set
forth in this Section 1.1. If the Distributor Group fails to achieve
Consolidated Revenues of in excess of $10 million in three consecutive
calendar months prior to February 28, 2002, then Holder's right to acquire
the remaining 25,000 Warrant Shares pursuant to the terms of this Warrant
shall fail to vest and Holder shall have no right to acquire such shares
hereunder.
1.2. Method of Exercise. This Warrant may be exercised (subject to
the vesting requirements set forth above) by the Holder hereof in whole or
in part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
<PAGE>
the Company or by wire transfer to the account of the Company. The shares
so purchased shall be deemed to be issued as of the close of business on
the date on which the Company shall have received from the Holder payment
in full of the Exercise Price and Tax Withholding Liability and the other
documents referred to herein (the "Exercise Date"). Notwithstanding the
foregoing, Holder shall not be entitled to exercise this Warrant, in whole
or in part, unless and until Holder is current in all payment obligations
to the Company, whether arising under the Distribution Agreement or
otherwise.
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations concerning the Holder as are necessary or appropriate to
assure compliance by the Holder with the Securities Act.
1.4. Resale Restrictions. The Holder hereof covenants and agrees
with the Company that it will not, without the prior written consent of the
Company, sell more than 5,000 shares per month during the two-year period
following any exercise of this Warrant by Holder.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
<PAGE>
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
<PAGE>
Warrant, all shares of Common Stock (or Other Securities) from time to time
issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
<PAGE>
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
--------------------------------
Name: Roger D. Bryant
------------------------------
Title: Chairman
-----------------------------
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
------
/s/ Juan Carlos Gaviria
-----------------------------------
Printed Name: Juan Carlos Gaviria
Address:
------------------------
------------------------
Fax:
--------------------
- -------------------------------------------------------------------------------
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Dial-Thru International Corporation
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
___________/20/ shares of Common Stock (as defined in such Warrant) and herewith
makes payment therefor (including any Tax Withholding Liability) of $__________,
as of the date written below. The undersigned requests that the certificates for
such shares of Common Stock be issued in the name of, and delivered to,
_______________________________________________ whose address is
_____________________________________________________________________________.
Dated:
---------------------------
---------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address of Holder:
---------------------------------------
---------------------------------------
---------------------------------------
Date of exercise:
---------------------
- --------------------------
/20/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
<PAGE>
EXHIBIT 5.1
ARTER & HADDEN LLP
1717 MAIN STREET, SUITE 4100
DALLAS, TEXAS 75201
(214) 761-2100
April 28, 2000
Dial-Thru International Corporation
8100 Jetstar Drive, Suite 100
Irving, Texas 75063
RE: OFFERING OF SHARES OF COMMON STOCK OF DIAL-THRU
INTERNATIONAL CORPORATION
Ladies and Gentlemen:
On April 28, 2000 Dial-Thru International Corporation, a Delaware
corporation formerly known as ARDIS Telecom & Technologies, Inc., successor by
merger to Canmax Inc. (the "Company"), expects to file with the Securities and
Exchange Commission a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to the offering (the "Offering") of up to
1,150,000 shares (the "Registrable Shares") of the common stock, $.001 par value
per share (the "Common Stock") issuable pursuant to the following agreements
(each, a "Compensation Contract"):
(a) Common Stock Purchase Warrant issued to Thomas Rinehart dated April
26, 1999,
(b) Common Stock Purchase Warrant issued to Lyle M. Green dated November
2, 1999,
(c) Common Stock Purchase Warrant issued to Ivor Flannery dated December
22, 1999,
(d) Common Stock Purchase Warrant issued to Masoud Safi dated December 22,
1999,
(e) Common Stock Purchase Warrant issued to Kamran Ahmad dated December
22, 1999,
(f) Common Stock Purchase Warrant issued to Tom Schnaible dated December
22, 1999,
(g) Common Stock Purchase Warrant issued to Don Thorn dated December 22,
1999,
(h) Common Stock Purchase Warrant issued to Carl Peterson dated December
22, 1999,
(i) Common Stock Purchase Warrant issued to Robert Trail dated December
22, 1999,
(j) Common Stock Purchase Warrant issued to Patrick Doualle dated December
22, 1999,
(k) Common Stock Purchase Warrant issued to Tim Dotson dated December 22,
1999,
<PAGE>
(l) Common Stock Purchase Warrant issued to Lawrence Vierra dated December
22, 1999,
(m) Amended and Restated Common Stock Purchase Warrant issued to Alvaro
Restrepo dated March 1, 2000,
(n) Amended and Restated Common Stock Purchase Warrant issued to Paul
Saunier dated March 1, 2000,
(o) Amended and Restated Common Stock Purchase Warrant issued to Eric
Iffland dated March 1, 2000,
(p) Amended and Restated Common Stock Purchase Warrant issued to Emilio
Martinez dated March 1, 2000,
(q) Amended and Restated Common Stock Purchase Warrant issued to Alfredo
Polo dated March 1, 2000,
(r) Amended and Restated Common Stock Purchase Warrant issued to Carlos
Bedoya dated March 1, 2000,
(s) Amended and Restated Common Stock Purchase Warrant (No. 1) issued to
Juan Carlos Gaviria dated March 1, 2000, and
(t) Amended and Restated Common Stock Purchase Warrant (No. 2) issued to
Juan Carlos Gaviria dated March 1, 2000.
The firm has acted as your counsel in connection with the preparation and filing
of the Registration Statement, and you have requested our opinion with respect
to certain legal aspects of the Offering.
In rendering our opinion, we have examined and relied upon the original or
copies, certified to our satisfaction, of (i) the Certificate of Incorporation
of the Company, as amended through the date hereof, (ii) the Bylaws of the
Company, as amended through the date hereof, (iii) copies of various resolutions
of the Board of Directors of the Company (iv) copies of the Compensation
Contracts and (v) such other documents and instruments as we have deemed
necessary.
In our examination, we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals, and the
conformity to original documents of all documents submitted to us as certified
or reproduction copies. As to various questions of fact material to this
opinion, we have relied upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independent check or verification of their
accuracy.
Based on the foregoing examination and subject to the comments and
assumptions set forth below, we are of the opinion that issuance and sale of the
Registrable Shares have been duly authorized and, when signed, delivered and
paid for in accordance with the provisions of the Compensation Contracts, will
be validly issued, fully paid and non-assessable.
This opinion is limited in all respect to the General Corporation Law of
the State of Delaware as in effect on the date hereof.
<PAGE>
We bring to your attention the fact that this legal opinion is an
expression of professional judgment and not a guarantee of result. This opinion
is given as of the date hereof, and we assume no obligation to update or
supplement such opinion to reflect any facts or circumstances that may hereafter
come to our attention or any changes in laws or judicial decisions that may
hereafter occur.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ ARTER & HADDEN LLP
--------------------------------------
ARTER & HADDEN LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to 1,150,000 shares of Dial-Thru International
Corporation common stock issuable pursuant to common stock purchase warrants for
certain employees and consultants of Dial-Thru International Corporation, of our
report dated January 7, 2000, with respect to the consolidated financial
statements of Dial-Thru International Corporation included in the Annual Report
(Form 10-K) for the year ended October 31, 1999.
/s/ KING GRIFFIN & ADAMSON P.C.
Dallas, Texas
April 24, 2000
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the registration of 1,150,000 shares of
common stock of Dial-Thru International Corporation issuable pursuant to common
stock purchase warrants for certain employees and consultants of Dial-Thru
International Corporation, of our report dated December 18, 1997, with respect
to the consolidated financial statements of Dial-Thru International Corporation
included in its Annual Report (Form 10-K) for the year ended October 31, 1999,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
April 24, 2000
