EXHIBIT 4.5
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
DIAL-THRU INTERNATIONAL CORPORATION
COMMON STOCK PURCHASE WARRANT
DATED: December 22, 1999
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Number of Common Shares: 100,000 Holder: Xxxxxx Xxxxx
Purchase Price: $1.44
Expiration Date: Three (3) years from date of vesting
For identification only.
The governing terms of this Warrant are set forth below.
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DIAL-THRU INTERNATIONAL CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received, Xxxxxx Xxxxx (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time prior to the earlier of (a) three
(3) years following the date of vesting of the Warrant or (b) the date of
termination of employment of the Holder with the Company (the "Exercise
Period"), at the Purchase Price hereinafter set forth, One Hundred Thousand
(100,000) fully paid and nonassessable shares of Common Stock (as defined below)
of the Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of this
Warrant (the "Purchase Price") shall initially be $1.44, provided, however, that
the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" means Dial-Thru International Corporation and
any entity that shall succeed or assume the obligations of such corporation
hereunder.
(b) The term "Common Stock" means the Company's common stock, .001 par
value per share.
(c) The term "Fair Market Value" means the closing price of the shares
of Common Stock on the date of delivery of any Notice of Exercise as
reported on the Nasdaq SmallCap Market (or other exchange on which the
Common Stock is traded) or,
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COMMON STOCK PURCHASE WARRANT - Page 1 (Dial-Thru Internatoinal Corporation)
if not then traded on any exchange, then the closing price as of such date
on the over-the-counter market or, if not quoted on the over-the-counter
market, then as determined by the Board of Directors.
(d) The term "Tax Withholding Liability" means all federal and state
income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(e) The term "Warrant Shares" means as of any date during the Exercise
Period, that number of shares of Common Stock which shall be exercisable
(subject to any vesting requirements) by the Holder hereof pursuant to the
terms of this Warrant.
1. Vesting and Exercise of Warrant; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 1/3 of the Warrant Shares
shall vest upon each of the first, second and third anniversary dates of
the date of this Agreement. Holder shall not have the right to acquire any
Warrant Shares pursuant to this Warrant prior the vesting of such rights as
set forth in this Section 1.1. Notwithstanding the vesting period set forth
above, nothing contained herein shall be construed to imply that Holder is
guaranteed employment with the Company for any specified period.
1.2. Method of Exercise. This Warrant may be exercised (subject to the
vesting requirements set forth above) by the Holder hereof in whole or in
part (but not as to a fractional share of Common Stock), at any time and
from time to time during the Exercise Period for up to, but not more than,
the number of vested Warrant Shares at such time, by delivery to the
Company at its principal office of (i) a notice of exercise (a "Notice of
Exercise") substantially in the form attached hereto as Exhibit A, (ii)
evidence satisfactory to the Company of the authority of the person
executing such Notice of Exercise, (iii) this Warrant, and (iv) payment of
(A) the Purchase Price multiplied by the number of shares of Common Stock
for which this Warrant is being exercised (the "Exercise Price") and (B)
Tax Withholding Liability. Payment of the Exercise Price and Tax
Withholding Liability shall be made by check or bank draft payable to the
order of the Company or by wire transfer to the account of the Company. The
shares so purchased shall be deemed to be issued as of the close of
business on the date on which the Company shall have received from the
Holder payment in full of the Exercise Price and Tax Withholding Liability
and the other documents referred to herein (the "Exercise Date").
1.3. Regulation D Restrictions. The Holder hereof represents and
warrants to the Company that it has acquired this Warrant and anticipates
acquiring the shares of Common Stock issuable upon exercise of the Warrant
solely for its own account for investment purposes and not with a view to
or for distributing such securities unless such distribution has been
registered with the Securities and Exchange Commission or an applicable
exemption is available therefor. At the time this Warrant is exercised, the
Company may require the Holder to state in the Notice of Exercise such
representations
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COMMON STOCK PURCHASE WARRANT - Page 2 (Dial-Thru Internatoinal Corporation)
concerning the Holder as are necessary or appropriate to assure compliance
by the Holder with the Securities Act.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustments on Certain Capital Transactions. On the occurrence of any
of the following events, the following adjustments to the rights granted under
this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of the
Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised shares
of Common Stock covered by this Warrant shall be increased by the amount
that a like number of shares of outstanding Common Stock shall have been
increased as a result of such stock increase and the Purchase Price shall
be adjusted by multiplying the Purchase Price in effect immediately prior
to such stock increase by a fraction, the numerator of which shall be the
number of unexercised shares covered by this Warrant immediately prior to
such stock increase and the denominator of which shall be the number of
unexercised shares of Common Stock covered by this Warrant as adjusted for
such stock increase.
3.2. In case the number of outstanding shares of Common Stock of the
Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding Common
Stock shall have been reduced as a result of such stock reduction and the
Purchase Price shall be adjusted by multiplying the Purchase Price in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the denominator
of which shall be the number of unexercised shares covered by this Warrant
as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into another
corporation, the holder of this Warrant will thereafter receive, upon the
exercise thereof in accordance with the terms of this Warrant, the
securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would have
been entitled upon such consolidation or merger ("Other Securities") and
the Company shall take such steps in connection with such consolidation or
merger as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any securities or property thereafter deliverable upon the exercise of this
Warrant.
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COMMON STOCK PURCHASE WARRANT - Page 3 (Dial-Thru Internatoinal Corporation)
4. Rights as a Shareholder. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
Shares have been registered under the Securities Act or any state securities or
blue sky laws. Accordingly, upon (a) any transfer of this Warrant, any
transferee of this Warrant or (b) the exercise of this Warrant in whole or in
part, and if the Warrant Shares have not been registered under the Securities
Act, Holder or any other person exercising this Warrant shall, as applicable,
represent and agree in writing satisfactory to the Company that Holder or such
other person (a) is acquiring the shares for the purpose of investment and not
with a view to distribution thereof, (b) knows the shares have not been
registered under the Securities Act or any state securities or blue sky laws,
(c) understands that he must bear the economic risk of said investment for an
indefinite period of time until the shares are registered under the Securities
Act and applicable state securities or blue sky laws or an exemption from such
registration is available, and (d) will not solicit any offer to sell or sell
all or any portion of the shares other than pursuant to an opinion of counsel
reasonably satisfactory to the Company.
6. Transfer Restrictions. This Warrant shall be exercisable only by
Holder and shall not be assignable or transferable. Any attempted alienation,
assignment, pledge, hypothecation, attachment, execution or similar process,
whether voluntary or involuntary, with respect to all or any part of this
Warrant or any right hereunder, shall be null and void.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
9. Notices, etc. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
10. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
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COMMON STOCK PURCHASE WARRANT - Page 4 (Dial-Thru Internatoinal Corporation)
DATED as of December 22, 1999.
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:
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/s/ Xxxxxx Xxxxx
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Printed Name: Xxxxxx Xxxxx
Address: --------------------------
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Fax:
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COMMON STOCK PURCHASE WARRANT - Page 5 (Dial-Thru Internatoinal 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,
______________/5/ shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) of
$__________, as of the date written below. The undersigned requests that the
certificates for such shares of Common Stock be issued in the name of, and
delivered to, _______________________________________________ whose address is
______________________________________________________________________________.
Dated:
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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:
---------------------------------
Title:
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Address of Holder:
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Date of exercise:
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/5/ Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the holder surrendering the same.
