Exhibit 4.13
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL (WHO MAY BE AN EMPLOYEE OF SUCH HOLDER) REASONABLY SATISFACTORY TO THE
COMPANY THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED
UNDER SAID ACT. THE OFFERING OF THIS SECURITY HAS NOT BEEN REVIEWED OR APPROVED
BY ANY STATE'S SECURITIES ADMINISTRATOR.
WARRANT
To Purchase 303.03 Shares of Common Stock of
DIGITAL TELEPORT, INC.
Expiring October 21, 2007
THIS IS TO CERTIFY THAT, for value received, Banque Indosuez,
or registered assigns (the "Holder") is entitled to purchase from DIGITAL
TELEPORT, INC., a Missouri corporation (the "Company"), at any time or from time
to time prior to 5:00 p.m., New York City time, on October 21, 2007 at the
offices of the Company, at the Exercise Price (as hereinafter defined) the
number of shares of Common Stock, par value $0.01 per share (the "Common
Stock"), of the Company shown above, all subject to adjustment and upon the
terms and conditions as hereinafter provided, and is entitled also to exercise
the other appurtenant rights, powers and privileges hereinafter described. This
Warrant is one of one or more warrants (the "Warrants") of the same form and
having the same terms as this Warrant.
Certain terms used in this Warrant are defined in Article V.
ARTICLE I
EXERCISE OF WARRANTS
1.1 Method of Exercise. To exercise this Warrant in whole or
in part, the Holder shall deliver to the Company, (a) this Warrant, (b) a
written notice, in substantially the form of the Subscription Notice attached
hereto, of such Holder's election to exercise this Warrant, which notice shall
specify the number of shares of Common Stock to be purchased, the denominations
of the share certificate or certificates desired, the name or names in which
such certificates are to be registered, and (c) payment of the Exercise Price
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with respect to such shares. Notwithstanding the foregoing, this Warrant shall
be exercisable only, to the extent and at the time or times, that the Holder
could legally take possession and title of such shares. Payment made pursuant to
clause (c) above may be made, at the option of the Holder: (x) by cash, money
order, certified or bank cashier's check or wire transfer, (y) the surrender to
the Company of securities of the Company having a value equal to the aggregate
Exercise Price, as determined in good faith by the Company's board of directors,
or (z) the delivery of a notice to the Company that the Holder is exercising
this Warrant by authorizing the Company to reduce the number of shares of Common
Stock subject to this Warrant by the number of shares having an aggregate value
equal to the aggregate Exercise Price, as determined in good faith by the
Company's board of directors.
The Company shall, as promptly as practicable and in any event
within three Business Days thereafter, execute and deliver or cause to be
executed and delivered, in accordance with such notice, a certificate or
certificates representing the aggregate number and type of shares of Common
Stock specified in said notice. The share certificate or certificates so
delivered shall be in such denominations as may be specified in such notice or,
if such notice shall not specify denominations, shall be in the amount of the
number of shares of Common Stock for which the Warrant is being exercised, and
shall be issued in the name of the Holder or such other name or names as shall
be designated in such notice, subject to Section 1.4. Such certificate or
certificates shall be deemed to have been issued, and such Holder or any other
Person so designated to be named therein shall be deemed for all purposes to
have become a holder of record of such shares, as of the date the aforementioned
notice is received by the Company. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of the certificate or
certificates, deliver to the Holder a new Warrant evidencing the rights to
purchase the remaining shares of Common Stock called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant, or, at
the request of the Holder, appropriate notation may be made on this Warrant
which shall then be returned to the Holder. The Company shall pay all expenses,
taxes and other charges payable in connection with the preparation, issuance and
delivery of share certificates and new Warrants (other than the Holder's legal
and accounting fees and disbursements), except that, if share certificates or
new Warrants shall be registered in the name or names other than the name of the
Holder, funds sufficient to pay all transfer taxes payable as a result of such
transfer shall be paid by the Holder at the time of delivering the
aforementioned notice of exercise of promptly upon receipt or a written request
of the Company for payment.
1.2 Shares To Be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable and free from all preemptive rights of any
stockholder, and from all taxes, liens and charges with respect to the issue
thereof (other than transfer taxes).
1.3 No Fractional Shares To Be Issued. The Company shall not
be required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, and if the Company shall have elected not to
issue such fraction of a share, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to such fraction of the Fair
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Market Value per share of outstanding Common Stock of the Company on the
Business Day immediately prior to the date of such exercise.
1.4 Share Legend. Each certificate for shares of Common Stock
issued upon exercise of this Warrant, unless at the time of exercise such shares
are registered under the Securities Act, shall bear the following legend:
"This Security has not been registered under the Securities
Act of 1933, as amended, or under the securities laws of any
state or other jurisdiction and may not be sold, offered for
sale or otherwise transferred unless registered or qualified
under said Act and applicable state securities laws or unless
the Company receives an opinion of counsel reasonably
satisfactory to the Company that registration, qualification
or other such actions are not required under said Act. The
offering of this Security has not been reviewed or approved by
any state securities administrator."
Any certificate issued at any time in exchange or substitution
for any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act) shall also bear such legend unless, in the opinion of
counsel selected by the holder of such certificate (who may be an employee of
such holder) reasonably satisfactory to the Company, the securities represented
thereby are no longer subject to restrictions on resale under the Securities
Act.
1.5 Reservation; Authorization. The Company has reserved and
will keep available for issuance upon exercise of the Warrants the total number
of shares of Common Stock deliverable upon exercise of all Warrants from time to
time outstanding. The issuance of such shares has been duly and validly
authorized and, when issued and sold in accordance with the Warrants, such
shares will be duly and validly issued, fully paid and nonassessable.
ARTICLE II
TRANSFER, EXCHANGE
AND REPLACEMENT OF WARRANTS
2.1 Ownership of Warrant. The Company may deem and treat the
Person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any
Person) for all purposes and shall not be affected by any notice to the
contrary, until presentation of this Warrant for registration of transfer as
provided in this Article II.
2.2 Transfer of Warrant. The Company agrees to maintain books
for the registration of transfers of the Warrants, and transfer of this Warrant
and all rights hereunder shall be registered, in whole or in part, on such
books, upon surrender of this Warrant at the headquarters of the company,
together with a written assignment of this Warrant duly executed by the Holder
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or his duly authorized agent or attorney, with (unless the Holder is the
original Warrantholder) signatures guaranteed by a bank or trust Company or a
broker or dealer registered with the NASD, and funds sufficient to pay any
transfer taxes payable upon such transfer. Upon surrender the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignees and
in the denominations specified in the instrument of assignment, and this Warrant
shall promptly be canceled. The Company shall not be required to register any
transfers in violation of Section 2.6 hereof, or if the Holder fails to furnish
to the Company, after a request therefor, an opinion of counsel reasonably
satisfactory to the Company that such transfer is exempt from the registration
requirements of the Securities Act.
2.3 Division or Combination of Warrants. This Warrant may be
divided or combined with other Warrants upon surrender hereof and of any Warrant
or Warrants with which this Warrant is to be combined at the Company, together
with a written notice specifying the names and denominations in which the new
Warrant or Warrants are to be issued, signed by the holders hereof and thereof
or their respective duly authorized agents or attorneys. Subject to compliance
with Section 2.6 as to any transfer which may be involved in the division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
2.4 Loss, Theft, Destruction or Mutilation of Warrants. Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Company, or, in the in case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same aggregate number of shares of Common
Stock as provided for in such lost, stolen, destroyed or mutilated Warrant.
2.5 Expenses of Delivery of Warrants. The Company shall pay
all expenses, taxes (other than transfer taxes or income taxes of a Holder and
such Holder's legal and accounting fees and disbursement) and other charges
payable in connection with the preparation, issuance and delivery of Warrants
and shares issuable upon exercise of the Warrants hereunder.
2.6 Restrictions on Transfer and Division. This Warrant, and
any Warrants resulting from the division, transfer or combination of this
Warrant, and the rights of a Warrantholder hereunder or thereunder, and any
shares of Common Stock acquired by the exercise hereof or thereof, may not be
assigned or transferred to such persons as are determined in good faith by the
Company to be competitors of the Company. Such restriction shall not apply
following a public offering of Common Stock. No division, assignment or transfer
of the rights of a Warrantholder under a Warrant shall be effective with respect
to other than whole shares of Common Stock, unless such assignment or transfer
is of all of the rights of such Warrantholder under such Warrant; provided,
however, that if this Warrant is originally exercisable with respect to a number
of shares of Common Stock that includes a fractional share, this Warrant may be
divided such that such fractional share, together with one or more whole shares,
may be acquired by the exercise of a Warrant resulting from such division. The
term "competitor" shall mean (i) any person (other than DTI) providing
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telecommunications or fiber optic transmission services, (ii) any utility
Company, (iii) KLT Inc. and (iv) any Affiliate, director, officer, member or
partner of any of the foregoing.
ARTICLE III
CERTAIN RIGHTS
3.1 Contest and Appraisal Rights. Upon each determination of
Fair Market Value for an adjustment pursuant to Article IV (other than a
determination relating solely to setting the value of fractional shares), the
Company shall promptly give notice thereof to all Warrantholders, setting forth
in reasonable detail the calculation of such Fair Market Value and the method
and basis of determination thereof, as the case may be. If the Requisite Holders
shall disagree with such determination and shall, by notice to the Company given
within 15 days after the Company's notice of such determination, elect to
dispute such determination, such dispute shall be resolved in accordance with
this Section 3.1. In the event that a determination of Market Price, or a
determination of Fair Market Value solely involving Market Price, is disputed,
such dispute shall be submitted to a New York Stock Exchange member firm
selected by the Company and acceptable to the Warrantholders, whose
determination of Fair Market Value and/or Market Price, as the case may be,
shall be binding on the Company and the Warrantholders. The costs of such
submission shall be borne by the Warrantholders electing to dispute the
Company's determination, except that if such firm's determination of Fair Market
Value and/or Market Price is disparate by 10% or more to the benefit of the
Warrantholders from the Company's original determination, the costs of
conducting such submission shall be borne by the Company. In the event that a
determination of Fair Market Value, other than a determination solely involving
Market Price, is disputed, such dispute shall be resolved through the Appraisal
Procedure.
3.2 Certain Covenants. (a) The Company covenants and agrees
that, until exercise or cancellation of this Warrant, the Company will deliver
to each Holder:
(i) As soon as available but not later than ninety
(90) days after the close of the fiscal year of the Company, a
consolidated balance sheet of the Company as at the end of such year
and the related consolidated and consolidating statements of income, of
stockholders' equity and of cash flows for such year, such consolidated
statements to be audited by Deloitte & Touche LLP or other "Big Six"
accounting firm;
(ii) As soon as available but not later than sixty
(60) days after the end of each quarter, a consolidated balance sheet
of the Company as at the end of, and the related consolidated
statements of income, of stockholders' equity and of cash flows for the
portion of the Company's fiscal year then elapsed;
(b) By acceptance of the information delivered pursuant to
Section 3.2(a), the Holder shall be deemed to have agreed to hold such
information in strict confidence, except as required by law, unless and until
such information otherwise becomes publicly available. The Company may condition
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the delivery of information pursuant to Section 3.2(a) upon the receipt of an
agreement executed by the Holder agreeing to the foregoing obligation.
(c) The obligations in Section 3.2(a) shall cease upon the
Company becoming subject to Section 12 or Section 15(d) of the Securities
Exchange Act of 1934, as amended.
3.3 Non-Disclosure. (a) In the event that the holder of shares
of Common Stock issued upon the exercise of this Warrant requests or demands, as
a shareholder of the Company, to inspect, examine or copy any of the Company's
books, records or other documentation or information, and the Board of Directors
of the Company makes a good faith determination that such inspection,
examination or copying would place the Company at a competitive disadvantage
with respect to any other entity, including but not limited to such shareholder,
that then competes, or is reasonably likely to compete in the foreseeable
future, either directly or indirectly, with the Company, then the Company may
refuse to disclose to such shareholder any or all of the following items of the
Company:
(i) interoffice or intraoffice communication separated
solely for management review;
(ii) confidential analyses, plans for business
development, organizational data, marketing plans and
strategies, or sales data;
(iii) draft or interim financial reports, or any other
internal documents subject to audit, adjustment or
verification;
(iv) unpublished promotional material, cost and pricing
information, customer lists, and contracts, in
whatever form, manner or medium recorded (if
recorded);
(v) documentation or information including, but not
limited to, any and all information and materials
that contain, or could lead to the disclosure of, the
Company's trade secrets or any documentation or
information concerning the Company's current, future
or proposed products or services, including without
limitation unpublished computer code (both source
code and object code), network configurations,
software designs, or any drawings, specifications,
notebook entries, technical notes and graphs, or
research; and
(vi) all other information that the Company or its
Affiliates or subsidiaries treat or maintain as
confidential, proprietary, restricted or otherwise as
not to be disclosed generally.
(b) The Warrantholder further agrees that all of the
above-mentioned materials do not constitute "books and records" within the
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meaning of Section 351.215 of the Revised Statutes of Missouri, and that the
Warrantholder has no right or privilege by reason of becoming a shareholder in
the Company to inspect, examine or copy such materials.
ARTICLE IV
ANTIDILUTION PROVISIONS
4.1 Adjustments Generally. The Exercise Price and the number
of shares of Common Stock (or other securities or property) issuable upon
exercise of this Warrant shall be subject to adjustment from time to time upon
the occurrence of certain events, as provided in this Article IV.
4.2 Common Stock Reorganization. If the Company shall after
the date of issuance of this Warrant subdivide its outstanding shares of Common
Stock into a greater number of shares or consolidate its outstanding shares of
Common Stock into a smaller number of shares (any such event being called a
"Common Stock Reorganization"), then (a) the Exercise Price shall be adjusted,
effective immediately after the record date at which the holders of shares of
Common Stock are determined for purposes of such Common Stock Reorganization, to
a price determined by multiplying the Exercise Price in effect immediately prior
to such record date by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on such record date before giving effect to
such Common Stock Reorganization and the denominator of which shall be the
number of shares of Common Stock outstanding after giving effect to such Common
Stock Reorganization, and (b) the number of shares of Common Stock subject to
purchase upon exercise of this Warrant shall be adjusted, effective at such
time, to a number determined by multiplying the number of shares of Common Stock
subject to purchase immediately before such Common Stock Reorganization by a
fraction, the numerator of which shall be the number of shares outstanding after
giving effect to such Common Stock Reorganization and the denominator of which
shall be the number of shares of Common Stock outstanding immediately before
such Common Stock Reorganization.
4.3 Common Stock Distribution. (a) If the Company shall after
the date of issuance of this Warrant issue or otherwise sell or distribute any
shares of Common Stock, otherwise than pursuant to a Common Stock Reorganization
(any such event, including any event described in paragraphs (b) and (c) below,
being herein called a "Common Stock Distribution"), if such Common Stock
Distribution shall be for a consideration per share less than the Fair Market
Value per share of outstanding Common Stock of the Company on the date of such
Common Stock Distribution, or on the first date of the announcement of such
Common Stock Distribution (whichever is less), then, effective upon such Common
Stock Distribution, the number of shares of Common Stock purchasable upon
exercise of this Warrant shall be adjusted by multiplying the number of shares
of Common Stock subject to purchase upon exercise of this Warrant by a fraction,
the numerator of which shall be the total number of shares of Common Stock
outstanding (and issuable upon exercise or conversion of outstanding options,
warrants and convertible securities) immediately prior to such Common Stock
Distribution plus the number of shares of Common Stock issued (or deemed to be
issued pursuant to paragraphs (b) and (c) below) in such Common Stock
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Distribution and the denominator of which shall be an amount equal to the sum of
(A) the number of shares of Common Stock outstanding (and issuable upon exercise
or conversion of outstanding options, warrants and convertible securities)
immediately prior to the Common Stock Distribution, plus (B) the number of
shares of Common Stock which the aggregate consideration, if any, received by
the Company (determined as provided below) for such Common Stock Distribution
would buy at the Fair Market Value thereof, as of the date immediately prior to
such Common Stock Distribution or as of the date immediately prior to the date
of announcement of such Common Stock Distribution (whichever is less). In the
event of any such adjustment, the Exercise Price for each Warrant shall be
adjusted to a number determined by dividing the Exercise Price immediately prior
to such Common Stock Distribution by the fraction used for purposes of the
aforementioned adjustment.
The provisions of this paragraph (a), including by operation
of paragraph (b) or (c) below, shall not operate to increase the Exercise Price
or to reduce the number of shares of Common Stock subject to purchase upon
exercise of this Warrant.
(b) If the Company shall after the date of issuance of this
Warrant issue, sell, distribute or otherwise grant in any manner (whether
directly or by assumption in a merger or otherwise) any rights to subscribe for
or to purchase, or any warrants or options for the purchase of, Common Stock or
any stock or securities convertible into or exchangeable for Common Stock (such
rights, warrants or options being herein called "Options" and such convertible
or exchangeable stock or securities being herein called "Convertible
Securities"), whether or not such Options or the rights to convert or exchange
any such Convertible Securities are immediately exercisable, and the price per
share for which Common Stock is issuable upon the exercise of such Options or
upon conversion or exchange of such Convertible Securities (determined by
dividing (i) the aggregate amount, if any, received or receivable by the Company
as consideration for the granting of such Options, plus the minimum aggregate
amount of additional consideration payable to the Company upon the exercise of
all such Options, plus, in the case of Options to acquire Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
payable upon the issue or sale of such Convertible Securities and upon the
conversion or exchange thereof, by (ii) the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon the conversion
or exchange of all such Convertible Securities issuable upon the exercise of
such Options) shall be less than the Fair Market Value per share of outstanding
Common Stock of the Company on the date of granting such Options or on the date
of announcement thereof (whichever is less), then for purposes of paragraph (a)
above, the total maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon conversion or exchange of the total maximum
amount of such Convertible Securities issuable upon the exercise of such Options
shall be deemed to have been issued as of the date of granting of such Options
and thereafter shall be deemed to be outstanding and the Company shall be deemed
to have received as consideration such price per share therefor, determined as
provided above. Except as otherwise provided in paragraph (d) below, no
additional adjustment of the number of shares of Common Stock purchasable upon
the exercise of this Warrant or of the Exercise Price shall be made upon the
actual exercise of such Options or upon conversion or exchange of such
Convertible Securities.
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(c) If the Company shall after the date of issuance of this
Warrant issue, sell or otherwise distribute or grant (whether directly or by
assumption in a merger or otherwise) any Convertible Securities, whether or not
the rights to exchange or convert thereunder are immediately exercisable, and
the price per share for which Common Stock is issuable upon such conversion or
exchange (determined by dividing (i) the aggregate amount received or receivable
by the Company as consideration for the issue, sale or distribution of such
Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common Stock issuable
upon the conversion or exchange of all such Convertible Securities) shall be
less than the Fair Market Value per share of outstanding Common Stock of the
Company on the date of such issue, sale or distribution or on the date of
announcement thereof (whichever is less). then, for purposes of paragraph (a)
above, the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall be deemed to
have been issued as of the date of the issue, sale or distribution of such
Convertible Securities and thereafter shall be deemed to be outstanding and the
Company shall be deemed to have received as consideration such price per share
therefor, determined as provided above. Except as otherwise provided in
paragraph (d) below, no additional adjustment of the number of shares of Common
Stock purchasable upon exercise of this Warrant or of the Exercise Price shall
be made upon the actual conversion or exchange of such Convertible Securities.
(d) If the purchase price provided for in any Option referred
to in paragraph (b) above, the additional consideration, if any, payable upon
the conversion or exchange of any Convertible Securities referred to in
paragraph (b) or (c) above, or the rate at which any Convertible Securities
referred to in paragraph (b) or (c) above are convertible into or exchangeable
for Common Stock shall change at any time (other than under or by reason of
provisions designed to protect against, and having the effect of protecting
against, dilution upon an event which results in a related adjustment pursuant
to this Article IV), the number of shares of Common Stock purchasable upon
exercise of this Warrant and the Exercise Price then in effect shall forthwith
be readjusted (effective only with respect to any exercise of this Warrant after
such readjustment) to the number of shares of Common Stock purchasable upon
exercise of this Warrant and the Exercise Price which would then be in effect
had the adjustment made upon the issue, sale, distribution or grant of such
Options or Convertible Securities been made based upon such changed purchase
price, additional consideration or conversion rate, as the case may be;
provided, however, that such readjustment shall give effect to such change only
with respect to such Options and Convertible Securities as then remain
outstanding. If, at any time after any adjustment of the number of shares of
Common Stock purchasable upon exercise of each Warrant or the Exercise Price
shall have been made pursuant to this Article IV on the basis of the issuance of
any Option or Convertible Securities or after any new adjustments of the number
of shares of Common Stock purchasable upon exercise of each Warrant or the
Exercise Price shall have been made pursuant to this paragraph, the right of
conversion, exercise or exchange in such Option or Convertible Securities shall
expire or terminate, and the right of conversion, exercise or exchange in
respect of a portion of such Option or Convertible Securities shall not have
been exercised, such previous adjustment shall be rescinded and annulled.
Thereupon, a recomputation shall be made of the effect of such Option or
Convertible Securities on the basis of treating the number of shares of Common
Stock, if any, theretofore actually issued or issuable pursuant to the previous
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exercise of such right of conversion, exercise or exchange as having been issued
on the date or dates of such conversion, exercise or exchange and for the
consideration actually received and receivable therefor, and treating any such
Option or Convertible Securities which then remain outstanding as having been
granted or issued immediately after the time of any such issuance for the
consideration per share for which shares of Common Stock are issuable under such
Option or Convertible Securities; and, if and to the extent called for by the
foregoing provisions of this Section on the basis aforesaid, a new adjustment of
the number of shares of Common Stock purchasable upon exercise of each Warrant
and the Exercise Price shall be made, which new adjustment shall supersede
(effective only with respect to any exercise of this Warrant after such
readjustment) the previous adjustment so rescinded and annulled.
(e) If the Company shall after the date of issuance of this
Warrant pay a dividend or make any other distribution upon any capital stock of
the Company payable in Common Stock, Options or Convertible Securities, then,
for purposes of paragraph (a) above, such Common Stock, Options or Convertible
Securities, as the case may be, shall be deemed to have been issued without
consideration.
(f) If any shares of Common Stock, Options or Convertible
Securities shall be issued, sold or distributed for cash, the consideration
received therefor shall be deemed to be the gross amount received by the Company
(with no deduction for any underwriting commissions or concessions paid or
allowed by the Company in connection therewith). It any shares of Common Stock,
Options or Convertible Securities shall be issued, sold or distributed for a
consideration other than cash, the amount of the consideration other than cash
received by the Company shall be deemed to be the fair market value of such
consideration as determined in good faith by the Board of Directors of the
Company, (with no deduction for any underwriting commissions or concessions paid
or allowed by the Company in connection therewith). If any shares of Common
Stock Options or Convertible Securities shall be issued in connection with any
merger in which the Company is the surviving corporation, the amount of
consideration therefor shall be deemed to be the Fair Market Value of such
portion of the assets and business of the nonsurviving corporation as shall be
attributable to such Common Stock, Options or Convertible Securities, as the
case may be. If any Options shall be issued in connection with the issue and
sale of other securities of the Company, together comprising one integral
transaction in which no specific consideration is allocated to such Options by
the parties thereto, such Options shall be deemed to have been issued for
consideration to be determined pursuant to the Appraisal Procedure.
(g) If the Company shall take a record of the holders of the
Common Stock for the purpose of entitling then to receive a dividend or other
distribution payable in Common Stock, Options or Convertible Securities or to
subscribe for or purchase Common Stock, Options or Convertible Securities, then
such record date shall be deemed to be the date of the issue, sale, distribution
or grant of the shares of Common Stock deemed to have been issued or sold upon
the declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
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(h) For purposes of determining whether any adjustment is
required pursuant to this Article IV any security of the Company having rights
substantially equivalent to the Common Stock as to dividends or upon liquidation
dissolution or winding up of the Company shall be treated as if such security
were Common Stock.
4.4 Dividends. If the Company shall after the date of issuance
of this Warrant issue or distribute to all or substantially all holders of
shares of Common Stock evidences of indebtedness, any other securities of the
Company or any property, assets or cash, and if such issuance or distribution
does not constitute a Common Stock Reorganization or a Common Stock Distribution
(any such nonexcluded event being herein called a "Dividend"), then
simultaneously with the payment of such Dividend, the Company will pay to the
Holder of this Warrant an amount of property (including, without limitation,
cash) and/or securities (including, without limitation, securities of other
companies) as would have been received by such Holder had it exercised this
Warrant and received all of the shares of Common Stock issuable upon the
exercise of this Warrant immediately prior to the record date (or other
applicable date) used for determining stockholders of the Company entitled to
receive such Dividend. No adjustment in the shares of Common Stock subject to
purchase upon the exercise of this Warrant or in the Exercise Price shall be
made for any issuance or distribution to which the provisions of this Section
apply.
4.5 Capital Reorganization. If after the date of issuance of
this Warrant there shall be any consolidation or merger to which the Company is
a party, other than a consolidation or a merger in which the Company is a
continuing corporation and which does not result in any reclassification of, or
change (other than a Common Stock Reorganization or a change in par value), in,
outstanding shares of Common Stock, or any sale or conveyance of the property of
the Company as an entirety or substantially as an entirety (any such event being
called a "Capital Reorganization"), then, effective upon the effective date of
such Capital Reorganization, the Holder shall have the right to purchase, upon
exercise of this Warrant, the kind and amount of shares of stock and other
securities and property (including cash) which the Holder would have owned or
have been entitled to receive after such Capital Reorganization if this Warrant
had been exercised immediately prior to such Capital Reorganization, assuming
such holder (i) is not a person with which the Company consolidated or into
which the Company merged or which merged into the Company or to which such sale
or conveyance was made, as the case may be ("constituent person"), or an
Affiliate of a constituent person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash or other property
receivable upon such Capital Reorganization (provided that if the kind or amount
of securities, cash or other property receivable upon such Capital
Reorganization is not the same for each share of Common Stock held immediately
prior to such consolidation, merger, sale or conveyance by other than a
constituent person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purposes of this Section the kind and amount of shares of stock and other
securities or other property (including cash) receivable upon such Capital
Reorganization shall be deemed to be the kind and amount so receivable per share
by a plurality of the non-electing shares). The provisions of this Section 4.5
shall similarly apply to successive Capital Reorganizations. Without limiting
the generality of the first sentence of this Section 4.5, the effect of such
11
sentence in the context of a merger ("Formation Merger") of the Company in
connection with the formation of a holding company ("Holding Company"), in which
merger the holders of Common Stock receive solely shares of common stock of the
Holding Company, and the number of fully diluted shares of outstanding common
stock of the Holding Company immediately following the Formation Merger is equal
to the number of fully diluted shares of outstanding Common Stock of the Company
immediately prior to the Merger, shall be that (i) this Warrant shall be
exercisable for the number of shares of common stock of the Holding Company
which the Holder would have owned or have been entitled to receive if this
Warrant had been exercised immediately prior to such Formation Merger, and (ii)
the provisions of Article III, this Article IV, and Section 6.10 shall
thereafter apply to the Holding Company, such that references to the Company in
such Articles and such Section shall be deemed to be references to the Holding
Company, and references to the Common Stock shall be deemed to be references to
the common stock of the Holding Company.
4.6 Adjustment Rules. (a) Any adjustments pursuant to this
Article IV shall be made successively whenever an event referred to herein shall
occur.
(b) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization,
Common Stock Distribution, Dividend or Capital Reorganization, and shall legally
abandon such action prior to effecting such action, then no adjustment shall be
made pursuant to this Article IV in respect of such action.
(c) No adjustment in the amount of shares purchasable upon
exercise of this Warrant or in the Exercise Price shall be made pursuant to this
Article IV unless such adjustment increases or decreases such amount or price by
one percent or more, but any such lesser adjustment shall be carried forward and
shall be made at the time and together with the next subsequent adjustment which
together with any adjustments so carried forward shall serve to adjust such
amount or price by one percent or more.
(d) No adjustment in the Exercise Price shall be made
hereunder if such adjustment would reduce the exercise price to an amount below
par value of the Common Stock, which par value shall initially be $0.01 per
share of Common Stock.
(e) Notwithstanding anything in this Agreement to the
contrary, no adjustment shall be made pursuant to this Article IV or otherwise
(including without limitation in the amount of shares purchasable upon exercise
of this Warrant or in the Exercise Price) in respect of or as a result of (i)
the issuance (or deemed issuance) or repurchase of shares of Common Stock in
connection with the exercise of the Warrants or (ii) the issuance (or deemed
issuance), sale, grant or distribution of shares of Common Stock, Options or
Convertible Securities in an underwritten public offering, or a Rule 144A
offering, managed by a nationally or regionally recognized investment banking
firm, (iii) the issuance (or deemed issuance), sale, grant, distribution or
repurchase of shares of Common Stock, Options or Convertible Securities, or any
other transaction, if any such issuance, sale, grant, distribution, repurchase
or other transaction is between the Company and any person or entity not an
Affiliate of the Company or is part of or made pursuant to a transaction between
the Company and any person or entity not an Affiliate of the Company (including
12
without limitation any issuance (or deemed issuance), sale, grant, distribution
or repurchase of shares of Common Stock, Options, or Convertible Securities as
part of or pursuant to a merger between the Company and an entity not an
Affiliate of the Company or the purchase of substantially all assets by the
Company of an entity not an Affiliate of the Company), (iv) the issuance (or
deemed issuance), sale, grant, distribution or repurchase of shares of Common
Stock, Options or Convertible Securities to or from an Affiliate of the Company,
or any other transaction with an Affiliate of the Company, if any such issuance,
sale, distribution, repurchase or other transaction is approved by the majority
of directors not affiliated with such Affiliate, or (v) the issuance (or deemed
issuance), sale, grant, distribution or repurchase of shares of Common Stock,
Options or Convertible Securities to or from an employee of the Company, or any
other transaction with an employee of the Company, (including without limitation
the granting of stock options, restricted stock or other stock-based
compensation to an employee of the Company), if any such issuance, sale,
distribution, repurchase or other transaction is approved by the majority of
non-employee directors of the Company, or by the majority of non-employee
directors on a committee of directors consisting of at least two non-employee
directors of the Company. The issuance of Common Stock to KLT Telecom Inc. upon
conversion of preferred stock owned by KLT Telecom Inc. pursuant to the Stock
Purchase Agreement dated December 31, 1996 by and between the Company and KLT
Telecom Inc. is included within category (iii) in the previous sentence, and
following the Formation Merger, in which such preferred stock held by KLT
Telecom is exchanged for preferred stock of the Holding Company with the same
rights of conversion, the issuance of common stock of the Holding Company upon
conversion of such preferred stock of the Holding Company is included within
category (iii) in the previous sentence. Notwithstanding the first sentence of
this Section 4.6(e), this Section 4.6(e) shall not operate to prevent an
adjustment pursuant to the other provisions of this Article IV for (i) Common
Stock Reorganizations, dividends of Common Stock, Options or Convertible
Securities, or Capital Reorganizations, affecting all holders of Common Stock
similarly situated or (ii) the issuance (or deemed issuance), sale, grant,
distribution or repurchase of shares of Common Stock, Options or Convertible
Securities to or from an Affiliate of the Company, or any other transaction with
an Affiliate of the Company, if such issuance, sale, distribution, repurchase or
other transaction is voted for by the directors affiliated with another
Affiliate of the Company with the agreement or understanding that the directors
affiliated with such Affiliate shall in exchange vote in favor of the issuance
(or deemed issuance), sale, grant, distribution or repurchase of shares of
Common Stock, Options or Convertible Securities to or from such other Affiliate,
or any other transaction with such other Affiliate.
4.7 Proceedings Prior to Any Action Requiring Adjustment. As a
condition precedent to the taking of any action which would require an
adjustment pursuant to this Article IV, the Company shall take any action which
may be necessary, including obtaining regulatory approvals or exemptions, in
order that the Company may thereafter validly and legally issue as fully paid
and nonassessable all shares of Common Stock which the holders of Warrants are
entitled to receive upon exercise thereof.
13
ARTICLE V
DEFINITIONS
The following terms, as used in this Warrant, have the
following respective meanings:
"Affiliate" means, with respect to any person or entity, any
other person or entity controlling, controlled by or under common control with
such person or entity.
"Appraisal Procedure" means a procedure whereby two
independent appraisers, one chosen by the Company and one by the Requisite
Holders, shall mutually agree upon the determinations then the subject of
appraisal. Each party shall deliver a notice to the other appointing its
appraiser within 15 days after the Appraisal Procedure is invoked. If within 30
days after appointment of the two appraisers they are unable to agree upon the
amount in question, a third independent appraiser shall be chosen within 10 days
thereafter by the mutual consent of such first two appraisers or, if such first
two appraisers fail to agree upon the appointment of a third appraiser, such
appointment shall be made by the American Arbitration Association, or any
organization successor thereto, from a panel of arbitrators having experience in
the appraisal of the subject matter to be appraised. The decision of the third
appraiser so appointed and chosen shall be given within 30 days after the
selection of such third appraiser. If three appraisers shall be appointed and
the determination of one appraiser is disparate from the middle determination by
more than twice the amount by which the other determination is disparate from
the middle determination, then the determination of such appraiser shall be
excluded, the remaining two determinations shall be averaged and such average
shall be binding and conclusive on the Company and the Warrantholders; otherwise
the average of all three determinations shall be binding and conclusive on the
Company and the Warrantholders. The costs of conducting any Appraisal Procedure
shall be borne by the Warrantholders requesting such Appraisal Procedure, except
that if such Appraisal Procedure shall result in a determination that is
disparate by 10% or more to the benefit of the holder from the Company's initial
determination, all costs of conducting such Appraisal Procedure shall be borne
by the Company.
"Business Day" shall mean (a) if any class of Common Stock is
listed or admitted to trading on a national securities exchange, a day on which
the principal national securities exchange on which such class of Common Stock
is listed or admitted to trading is open for business or (b) if no class of
Common Stock is so listed or admitted to trading, a day on which any New York
Stock Exchange member fire is open for business.
"Capital Reorganization" shall have the meaning set forth in
Section 4.5.
"Closing Price" with respect to any security on any day means
(a) if such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported sale
occurs on such day, the average of the closing bid and asked prices regular way
on such day, in each case as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
14
securities exchange on which such class of security is listed or admitted to
trading, or (b) if such security is not listed or admitted to trading on any
national securities exchange, the last quoted sales price, or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market
on such day as reported by NASDAQ or any comparable system then in use or, if
not so reported, as reported by any New York Stock Exchange member firm
reasonably selected by the Company for such purpose.
"Common Stock" shall have the meaning set forth in the first
paragraph of this Warrant subject to adjustment pursuant to Article IV.
"Common Stock Distribution" shall have the meaning set forth
in Section 4.3(a).
"Common Stock Reorganization" shall have the meaning set forth
in Section 4.2.
"Company" shall have the meaning set forth in the first
paragraph of this Warrant.
"Convertible Securities" shall have the meaning set forth in
Section 4.3(b).
"Dividend" shall have the meaning set forth in Section 4.4.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any similar or successor federal statute, and the rules and
regulations of the Securities and Exchange Commission (or its successor)
thereunder, all as the same shall be in effect at the time.
"Exercise Price" shall mean $0.01 per share of Common Stock
purchaseable upon exercise of this Warrant..
"Fair Market Value" means the fair market value of the
business or property in question, as determined in good faith by the Board of
Directors of the Company, provided, however, that the Fair Market Value of any
security for which a Closing Price is available shall be the Market Price of
such security. The Fair Market Value of the Company shall be the Fair Market
Value of the Company and its subsidiaries as a going concern. Notwithstanding
the foregoing, if, at any date of determination of the Fair Market Value of the
Company, the Common Stock of any class shall then be publicly traded, the Fair
Market Value of the Company on such date shall be the Market Price on such date
multiplied by the number of shares of Common Stock on a fully diluted basis,
giving effect to any consideration to be paid to the Company in connection with
the exercise or conversion of any security. Fair Market Value shall be reduced
by any commission or concession paid or allowed in connection with the issuance
(or deemed issuance), sale, grant, distribution of any Common Stock, Options or
Convertible Securities.
"Holder" shall have the meaning set forth in the first
paragraph of this Warrant.
15
"Market Price" with respect to any security on any day means
the average of the daily Closing Prices of a share or unit of such security for
the 10 consecutive Business Days ending on the most recent Business Day for
which a Closing Price is available; provided, however, that in the event that,
in the case of Common Stock, the Market Price is determined during a period
following the announcement by the Company of (A) a dividend or distribution of
Common Stock, or (B) any subdivision, combination or reclassification of Common
Stock and prior to the expiration of 20 Business Days after the ex-dividend date
for such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the Market Price
shall be appropriately adjusted to reflect the current market price per share
equivalent of Common Stock. In the case of an underwritten initial public
offering of the Common Stock, Market Price shall be deemed to be the price at
which the shares of Common Stock are offered to the public by the underwriters
as reflected in the final prospectus for such offering.
"NASD" means The National Association of Securities Dealers,
Inc.
"NASDAQ" means The National Association of Securities Dealers,
Inc. Automated Quotation System.
"Options" shall have the meaning set forth in Section 4.3(b).
"Requisite Holders" means the Holders of Warrants to purchase
a majority of the shares of Common Stock issuable upon exercise of the Warrants
(excluding Warrants held by the Company or any of its subsidiaries) at the time
outstanding.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and any similar or successor federal statute, and the rules and
regulations of the Securities and Exchange Commission for its successor)
thereunder, all as the sane shall be in effect at the time.
"Warrantholder" means a holder of a Warrant.
"Warrants" shall have the meaning set forth in the first
paragraph of this Warrant.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, consents and other
communications provided for herein shall be in writing and shall be effective
upon delivery in person, faxed, or mailed by certified or registered mail,
return receipt requested, postage pre-paid, addressed as follows:
16
(i) if to the Company, to Digital Teleport, Inc., 00000
Xxxxxxx Xxxx, Xx. Xxxxx, XX 00000, Attention: President; with
a copy to Xxxxx Xxxx, LLP, 0 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xx. Xxxxx, XX 00000-0000, Attention: J. Xxxx Xxxxxx, Esq.;
(ii) if to an initial Holder of Warrants, to such Holder c/o
Banque Indosuez, New York Branch, at 1211 Avenue of the
Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, with a copy to
Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxxxxx, Esq., and if to any
subsequent Holder of Warrants, to it at such address as may
have been furnished to the Company in writing by such Holder;
or, in any case, at ouch other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Warrants) or to the
Holders of Warrants (in the case of the Company) in accordance with the
provisions of this paragraph.
6.2 Waivers; Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Warrant may be amended, modified or waived with (and only
with) the written consent of the Company and the Requisite Holders; provided,
however, that no such amendment, modification or waiver shall, without the
written consent of each Warrantholder whose interest might be adversely affected
by such amendment, modification or waiver, (a) change the number of shares of
Common Stock subject to purchase upon exercise of this Warrant, the Exercise
Price or provisions for payment thereof or (b) amend, modify or waive the
provisions of this Section or Articles III or IV.
Any such amendment, modification or waiver effected pursuant
to this Section shall be binding upon the holders of all Warrants and Warrant
Shares, upon each future holder thereof and upon the Company. In the event of
any such amendment, modification or waiver the Company shall give prompt notice
thereof to all Warrantholders and, it appropriate, notation thereof shall be
made on all Warrants thereafter surrendered for registration of transfer or
exchange.
No notice or demand on the Company in any case shall entitle
the Company to any other or further notice or demand in similar or other
circumstances.
6.3 Governing Law. This Warrant shall be construed in
accordance with and governed by the laws of the State of Missouri without regard
to principles of conflicts of law.
6.4 Survival of Agreements; Representations and Warranties
etc. All representations, warranties and covenants made by the Company herein or
in any certificate or other instrument delivered by or on behalf of it in
connection with the Warrants shall be considered to have been relied upon by the
17
Holder and shall survive the issuance and delivery of the Warrants, regardless
of any investigation made by the Holder, and shall continue in full force and
effect so long as any Warrant is outstanding. All statements in any such
certificate or other instrument shall constitute representations and warranties
hereunder.
6.5 Covenants to Bind Successor and Assigns. All covenants,
stipulations, promises and agreements in this Warrant contained by or on behalf
of the Company and the Holder shall bind their respective successors and
assigns, whether so expressed or not.
6.6 Severability. In case any one or more of the provisions
contained in this Warrant shall be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
6.7 Section Headings. The sections headings used herein are
for convenience of reference only, are not part of this Warrant and are not to
affect the construction of or be taken into consideration in interpreting this
Warrant.
6.8 No Rights as Stockholder. This Warrant shall not entitle
the Holder to any rights as a stockholder of the Company, including any
fiduciary duties of the directors of the Company.
6.9 No Impairment. The Company shall not by any action
including, without limitation, amending its certificate of incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any at the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate to
protect the rights of the Holder against impairment. Without limiting the
generality of the foregoing, the Company will (a) not, directly or indirectly,
increase the par value of any shares of Common Stock receivable upon the
exercise of this warrant above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (b) take all such action as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock upon the exercise of
this warrant, and (c) use its commercially reasonable best efforts to obtain all
such authorizations exemptions or consents from any public regulatory body
having jurisdiction thereof as may be necessary to enable the Company to perform
its obligations under this Warrant.
6.10 Stock Sales. (a) If both KLT Telecom Inc. ("KLT") and
Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") agree to sell a substantial portion of their
Common Stock to a third party in any one transaction or series of related
transactions (other than a public offering), then upon the request of the
Holder, KLT and Xxxxxxxxx shall afford to the Holder the opportunity to sell to
such third party (i) the same percentage of Common Stock issuable upon exercise
18
of this Warrant as is being sold by KLT and Xxxxxxxxx on a combined basis (as
measured at the time of the transaction, or the first of any series of related
transactions), (ii) at the same price and (iii) on the same terms and
conditions, as KLT and Xxxxxxxxx have agreed to sell their Common Stock. If
either KLT, on the one hand, or Xxxxxxxxx, on the other, agree to sell a
significant portion of its or his Common Stock to Xxxxxxxxx or KLT,
respectively, then upon the request of the Holder, KLT or Xxxxxxxxx, as the case
may be, shall afford to the Holder the opportunity to sell to Xxxxxxxxx or KLT,
respectively (i) the same percentage of Common Stock issuable upon exercise of
this Warrant as is being sold by KLT or Xxxxxxxxx on an individual basis (as
measured at the time of the transaction, or the first of any series of related
transactions), (ii) at the same price and (iii) on the same terms and
conditions, as KLT or Xxxxxxxxx, as the case may be, have agreed to sell their
Common Stock. The phrase "substantial portion", as used in the first sentence of
this Section 6.10(a), shall mean any sale of 55% or more of the combined
holdings of KLT and Xxxxxxxxx, and the phrase "significant portion" as used in
the second sentence of this Section 6.10(a), shall mean any sale of 10% or more
of KLT's or Xxxxxxxxx'x individual holding, as the case may be.
(b) If both KLT Telecom Inc. ("KLT") and Xxxxxxx X. Xxxxxxxxx
("Xxxxxxxxx") agree to sell a substantial portion of their Common Stock to a
third party in any one transaction or series of related transactions (other than
a public offering), then KLT and Xxxxxxxxx shall have the right to require the
Holder to sell to such third party (i) the same percentage of Common Stock
issuable upon exercise of this Warrant as is being sold by KLT and Xxxxxxxxx on
a combined basis (as measured at the time of the transaction, or the first of
any series of related transactions), (ii) at the same price and (iii) on the
same terms and conditions, as KLT and Xxxxxxxxx have agreed to sell their Common
Stock. If either KLT, on the one hand, or Xxxxxxxxx, on the other, agree to sell
a significant portion of its or his Common Stock to Xxxxxxxxx or KLT,
respectively, then KLT or Xxxxxxxxx, as the case may be, shall have the right to
require the Holder to sell to Xxxxxxxxx or KLT, respectively (i) the same
percentage of Common Stock issuable upon exercise of this Warrant as is being
sold by KLT or Xxxxxxxxx on an individual basis (as measured at the time of the
transaction, or the first of any series of related transactions), (ii) at the
same price and (iii) on the same terms and conditions, as KLT or Xxxxxxxxx, as
the case may be, have agreed to sell their Common Stock. The phrase "substantial
portion", as used in the first sentence of this Section 6.10(b), shall mean any
sale of 55% or more of the combined holdings of KLT and Xxxxxxxxx, and the
phrase "significant portion" as used in the second sentence of this Section
6.10(b), shall mean any sale of 10% or more of KLT's or Xxxxxxxxx'x individual
holding, as the case may be.
(c) Prior to making any sale covered by Section 6.10(a) or
6.10(b) ("Stock Sale"), KLT and Xxxxxxx X. Xxxxxxxxx shall provide the holder of
this Warrant with written notice (the "Sale Notice") in the manner provided
herein. If KLT and/or Xxxxxxxxx are exercising their rights pursuant to Section
6.10(b), or if the consideration in a Stock Sale is cash, the Sale Notice shall
be given at least ten days prior to the proposed date of such sale. In all other
situations, the notice shall be given fifteen days prior to the proposed date of
such sale. The Sale Notice will indicate whether KLT and/or Xxxxxxxxx are
exercising their rights pursuant to Section 6.10(b), and will identify the
proposed purchaser, the percentage of Common Stock to be sold, the proposed
amount and form of consideration to be paid per share, the terms and conditions
19
of payment and the proposed date of such sale ("Stock Sale Date") and, if KLT
and Xxxxxxxxx are not exercising their rights pursuant to Section 6.10(b), an
address or facsimile telephone number to which the Holder must give notice of
its intention to exercise its rights pursuant to Section 6.10(a). To exercise
its rights under Section 6.10(a), the Holder must give written notice to KLT and
Xxxxxxxxx at such address or telephone facsimile telephone number at least one
day prior to Closing.
(d) On the Stock Sale Date, if KLT and/or Xxxxxxxxx have
exercised their rights pursuant to Section 6.10(b), or if the holder has
exercised its rights under Section 6.10(a), then the holder shall exercise this
Warrant as specified in Section 1.1 of this Warrant prior to the consummation of
the Stock Sale, and shall deliver the certificates for the shares of Common
Stock issuable upon exercise of this Warrant, together with such stock powers
and other appropriate instruments of assignment duly executed, to the purchaser
in the manner and at the address indicated in the Sale Notice, against delivery
of the purchase price therefor.
(e) The rights and obligations under this Section 6.10 shall
not extend to any successor to part or all of the interest of Xxxxxxxxx or KLT,
unless in a writing delivered to the Holder such successor agrees to be bound by
this Section 6.10, in which event such successor shall be bound by, and shall
have the rights set forth in, this Section 6.10 as if such successor had been
named in this Section 6.10 (including without limitation in this Section
6.10(e)) in lieu of Xxxxxxxxx or KLT or, if not all of the stock of Xxxxxxxxx or
KLT is sold, in addition to Xxxxxxxxx and KLT. If Xxxxxxxxx or KLT, but not
both, sells all of his or its Common Stock, as the case may be, and the
successor does not agree to be bound by this Section 6.10, the rights and
obligations of this Section 6.10 shall continue to apply to whichever of
Xxxxxxxxx or KLT did not sell, as if the selling party had never been named in
this Section 6.10. If Xxxxxxxxx or KLT, or both, sells less than all of his or
its Common Stock, as the case may be, and any successor does not agree to be
bound by this Section 6.10, the rights and obligations of this Section 6.10
shall continue to apply to Xxxxxxxxx or KLT with respect to their remaining
holdings.
(f) This Section 6.10 shall terminate upon the later to occur
of (i) the date of an initial public offering of the Common Stock, and (ii) the
time at which the Holder may sell free of restriction pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended.
20
IN WITNESS WHEREOF, DIGITAL TELEPORT, INC. has caused this
Warrant to be executed in its corporate name by one of its officers hereunto
duly authorized, and attested by its Secretary or an Assistant Secretary, all as
of the day and year first above written.
DIGITAL TELEPORT, INC.
By:
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Attest:
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Secretary
IN WITNESS WHEREOF, and solely for purposes of their
obligations in Section 6.10 of this Warrant, KLT Telecom Inc. and Xxxxxxx X.
Xxxxxxxxx have caused this Warrant to be executed.
KLT TELECOM INC.
-------------------------------- ---------------------------------
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxxx
21
SUBSCRIPTION NOTICE
(To be executed upon exercise of Warrant)
TO DIGITAL TELEPORT, INC.:
The undersigned hereby irrevocably elects to exercise the
right to purchase represented by the attached Warrant for, and to purchase
thereunder, shares of voting Common Stock, as provided for therein, and tenders
herewith payment of the Exercise Price in full in accordance with the terms of
the attached Warrant.
Please issue a certificate or certificates for such shares of
Common Stock in the following name or names and denominations:
If said number of shares shall not be all the shares issuable
upon exercise of the attached Warrant, a new warrant is to be issued in the name
of the undersigned for the balance remaining of such shares less any fraction of
a share paid in cash.
Dated:_________________________________, 19___
----------------------------------
Note: The above signature should
correspond exactly with the
name on the face of the
attached Warrant or with the
name of the assignee
appearing in the assignment
form below.
22
ASSIGNMENT
(To be executed upon assignment of Warrant)
For value received, ___________________________ hereby sells,
assigns and transfers unto _______________________the attached Warrant, together
with all rights, title and interest therein, and does hereby irrevocably
constitute and appoint _______________________ attorney to transfer said Warrant
on the books of Digital Teleport, Inc., with full power of substitution in the
premises.
---------------------------------
Note: The above signature should
correspond exactly with the
name on the face of the
attached Warrant.
23
