Exhibit C-38
Remaining Shares Put Option Agreement
THIS PUT OPTION HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE. NO
TRANSFER, SALE OR OTHER DISPOSITION OF THIS PUT OPTION MAY BE MADE
UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THIS PUT OPTION
(OR TO THE EXTENT EXERCISABLE, THE SHARES RECEIVED UPON EXERCISE
OF THIS PUT OPTION) HAS BECOME EFFECTIVE UNDER SAID ACT; AND SUCH
REGISTRATION OR QUALIFICATION AS MAY BE NECESSARY UNDER THE
SECURITIES LAWS OF ANY STATE HAS BECOME EFFECTIVE, OR THE GRANTOR
OF THIS PUT OPTION HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL
SATISFACTORY TO THE GRANTOR OF THIS PUT OPTION, THAT SUCH
REGISTRATION IS NOT REQUIRED WITH RESPECT TO SUCH PROPOSED
DISPOSITION THEREOF, AND THAT SUCH DISPOSITION WILL NOT CAUSE THE
LOSS OF THE EXEMPTION UPON WHICH THE GRANTOR OF THIS PUT OPTION
RELIED IN ISSUING THIS PUT OPTION TO THE ORIGINAL OWNER THEREOF.
PUT OPTION
to Purchase Common Stock of
DTI Holdings, Inc., a Missouri corporation
FOR VALUE RECEIVED. KLT Telecom Inc. ("Grantor") hereby
grants to Xxxxxxx X. Xxxxxxxxx or his permitted assigns (such
registered holder or holders of this Put Option or any related Put
Option Shares (as defined below) are hereinafter referred to as
"Optionholder") an irrevocable and exclusive option to sell ("Put
Option") that number of Optionholder's shares of common stock (the
"Common Stock") of DTI Holdings, Inc. (the "Company") contemplated
by Section 1.3 (the "Put Option Shares") of the Amended and
Restated Agreement between the parties hereto, dated as of
December 26, 2000, as amended as of January 18, 2001, to which the
form of this Put Option is attached (the "Agreement"), as a whole,
but not in part, pursuant to the terms set forth herein; provided,
however, that upon any such exercise, the Grantor may elect to
make a Company Sale during the Company Sale Period to the extent
permitted under Section 1.3 of the Agreement.
1. EXERCISE OF PUT OPTION
1.1 Term. This Put Option shall be exercisable at any time
during the period commencing on September 1, 2003 and ending on
August 31, 2005.
1.2 Method of Exercise. To exercise this Put Option in
whole, but not in part, the Optionholder shall deliver to Escrow
Agent (as defined in Section 4 below), (i) a duly executed written
notice, in substantially the form of the Notice of Exercise
attached hereto as Exhibit 1 (a copy of which shall be delivered
to Grantor), and (ii) this Put Option. The Escrow Agent shall as
promptly as practicable, and in any event within 5 days after
receipt of such notice, cause to be executed and delivered, in
accordance with such notice, a certificate or certificates
representing the aggregate number of shares of Common Stock
specified therein. The stock certificate or certificates so
delivered shall be issued in the name of the Grantor or such other
name as shall be designated by the Grantor, as of the date the
exercise notice is received by the Escrow Agent.
1.3 Expenses and Taxes. The Grantor shall pay all Put
Option expenses, taxes and other charges payable in respect of the
issue of this Put Option or the transfer of any stock
certificates.
2. RESTRICTIONS ON EXERCISE AND TRANSFER; LEGEND; OWNERSHIP
2.1 Transfer. Subject to the New Shareholders Agreement and
the Remaining Shares Call Option Agreement, the Optionholder shall
not have the right to sell, hypothecate, pledge, donate, dispose
of or otherwise transfer (collectively referred to hereinafter as
a "Transfer") this Put Option or the Put Option Shares at any
time, except as provided in this Section 2.
2.2 Restrictions Under Securities Act. Neither this Put
Option nor the Put Option Shares have been registered under the
Securities Act of 1933, as amended (the "Securities Act") or under
the securities laws of the any state. This Put Option may not be
exercised and neither this Put Option nor the Put Option Shares,
when issued, may be Transferred (i) if such action would
constitute a violation of any federal or state securities laws or
a breach of the conditions to any exemption from registration
thereunder (including a loss of the exemptions under the
Securities Act, or applicable state securities laws, on which the
Grantor relied in issuing this Put Option) and (ii) unless and
until one of the following has occurred: (1) registration of this
Put Option or the Put Option Shares, as the case may be, under the
Securities Act, and such registration or qualification as may be
necessary under the securities laws of any state, has become
effective, or (2) the Optionholder has delivered to the Grantor an
opinion of counsel reasonably acceptable to the Grantor that such
registration or qualification is not required and such action will
not constitute a breach of the conditions to any exemption from
registration thereunder (including a loss of the exemptions under
the Securities Act, or applicable state securities laws, on which
the Grantor relied in issuing this Put Option).
2.3 Ownership of Put Option. Grantor and Escrow Agent may
deem and treat the person in whose name this Put Option is
registered as the holder and owner hereof (notwithstanding any
notations of ownership or writing hereon made by anyone) for all
purposes and shall not be affected by any notice to the contrary.
3. EXERCISE PRICE
Exercise Price. Upon the exercise of this Put Option, Grantor
shall pay an aggregate exercise price for all, but not less than
all, of the Put Option Shares being purchased at a price
determined in accordance with Section 1.3 of the Agreement (the
"Remaining Shares Exercise Price").
4. TRANSFER OF PUT OPTION SHARES TO ESCROW
All of the Put Option Shares will be transferred and
delivered with the signing of this Put Option to an agreed upon
escrow agent (the "Escrow Agent"), pursuant to a mutually agreed
upon escrow agreement (the "Escrow Agreement"). Such Escrow Agent
will tender the Put Option Shares to Optionholder in accordance
with the terms of this Put Option.
5. NOTICE
Any notice or other document required or permitted to be
given or delivered to the Grantor shall be delivered at, or sent
by certified or registered mail (return receipt requested) to such
holder at the last address shown on the books of the Escrow Agent
of which address such Grantor shall have notified the Escrow Agent
in writing. Any notice or other document required or permitted to
be given or delivered to holders of record of outstanding Put
Option Shares shall be delivered at, or sent by certified or
registered mail to, each such Grantor at such Grantor's address as
the same appears on the records of the Escrow Agent. Any notice or
other document required or permitted to be given or delivered to
the Optionholder shall be delivered at or sent by certified or
registered mail to 00000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx
00000, or such other address within the United States of America
as shall have been furnished in writing by the Optionholder to the
Escrow Agent. Any notice or other document required or permitted
to be given or delivered to the Escrow Agent shall be delivered at
or sent by certified or registered mail to the address specified
in the Escrow Agreement or such other address within the United
States of America as shall have been furnished in writing by the
Escrow Agent to Grantor and to Optionholder. Notices shall be
deemed to have been received on the date of the actual receipt
which, in the case of mailing, shall be the date of receipt shown
on the return receipt.
6. LIMITATIONS OF LIABILITY; NOT SHAREHOLDERS
No provision of this Put Option shall be construed as
conferring upon the holder hereof the right to vote, consent,
receive dividends or receive notice other than as herein expressly
provided in respect of meetings of shareholders for the election
of directors of the Company or any other matter whatsoever as a
shareholder of the Company. No provision hereof, in the absence of
affirmative action by the holder hereof to purchase shares of
Common Stock, and no mere enumeration herein of the rights or
privileges of the holder hereof, shall give rise to any liability
of such holder for the purchase price of any Put Option Shares or
as a shareholder of the Company, whether such liability is
asserted by Grantor or Company, or by creditors of Grantor or
Company.
7. LOSS, DESTRUCTION, ETC. OF PUT OPTION
Upon receipt of evidence satisfactory to the Escrow Agent of
the loss, theft, mutilation or destruction of the Put Option. and
in the case of any such loss, theft or destruction upon delivery
of a bond of indemnity in such form and amount as shall be
reasonably satisfactory to the Escrow Agent and Grantor, or in the
event of such mutilation upon surrender and cancellation of the
Put Option, the Escrow Agent shall cause the Grantor to make and
deliver a new Put Option. of like tenor, in lieu of such lost,
stolen, destroyed or mutilated Put Option.
8. GENERAL PROVISIONS
8.1 Amendment. This Put Option may be amended only by
agreement signed by both the Grantor and the Optionholder.
8.2 Successors and Assigns. This Put Option shall be binding
upon and inure to the benefit of the Grantor and his successors
and assigns and the Optionholder and its or his permitted
successors and assigns.
8.3 Captions. The captions used in this Put Option are for
convenience only and do not constitute a part of this Put Option
or such Exhibits.
8.4 Complete Agreement. This Put Option and the Purchase
Agreement contain the complete agreement between the parties
relating to the matters referred to herein and supersede any prior
understandings, agreements or representations by or between the
parties, written or oral, which may have related to the subject
matter hereof in any way.
8.5 Choice of Law. All questions concerning the
construction, validity and interpretation of this Put Option and
the Exhibits hereto shall be governed by the laws of the State of
Missouri.
8.6 Definitions. Unless otherwise defined in this Put
Option, all capitalized terms herein shall have the meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the Grantor has executed this Put Option
this 6th day of February, 2001.
KLT TELECOM, INC.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
