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
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Number of Common Shares: 50,000 Holder: Xxxx Xxxxxxx
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.
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DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Xxxx 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.
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COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru International Corporation)
(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: Xxxx
Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxxxxx, Xxxx Ifflen, Xxxxxx
Xxxxxxxx, Xxxxxx Xxxxxx and Xxxxxxx Xxxx.
(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
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COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru International Corporation)
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.
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COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru International Corporation)
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
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COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru International Corporation)
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]
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COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru International Corporation)
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Chairman
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Address: 0000 Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
HOLDER:
/s/ Xxxx Xxxxxxx
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Printed Name: Xxxx Xxxxxxx
Address:
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Fax:
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COMMON STOCK PURCHASE WARRANT - Page 6 (Dial-Thru International Corporation)
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
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(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:
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(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
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Name:
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Title:
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Address of Holder:
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Date of exercise:
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/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.
