Exhibit C-39
Remaining Shares Call Option Agreement
THIS CALL 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 CALL OPTION MAY BE
MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THIS CALL
OPTION (OR TO THE EXTENT EXERCISABLE, THE SHARES RECEIVED UPON
EXERCISE OF THIS CALL 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 CALL OPTION HAS BEEN FURNISHED WITH AN OPINION OF
COUNSEL SATISFACTORY TO THE GRANTOR OF THIS CALL 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 CALL OPTION
RELIED IN ISSUING THIS CALL OPTION TO THE ORIGINAL OWNER THEREOF.
CALL OPTION
to Purchase Common Stock of
DTI Holdings, Inc., a Missouri corporation
FOR VALUE RECEIVED, Xxxxxxx X. Xxxxxxxxx ("Grantor") hereby
grants to KLT Telecom Inc. or its permitted assigns (such
registered holder or holders of this Call Option or any related
Call Option Shares (as defined below) are hereinafter referred to
as "Optionholder") an irrevocable and exclusive Option to purchase
("Call Option") that number of Grantor's shares of common stock
(the "Common Stock") of DTI Holdings, Inc. (the "Company")
contemplated by Section 1.4 (the "Call 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 Call Option is attached (the "Agreement"),
as a whole, but not in part, pursuant to the terms set forth
herein.
1. EXERCISE OF CALL OPTION
1.1 Term. This Call Option shall be exercisable at any time
during the period commencing on September 1, 2005 and ending on
September 1, 2007.
1.2 Method of Exercise. To exercise this Call 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), (ii) payment of the Remaining Shares Call Exercise
Price (as defined in Section 3 below) for each share of Common
Stock purchased in cash, and (iii) this Call 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 Optionholder or such
other name as shall be designated by the Optionholder, as of the
date the exercise notice is received by the Escrow Agent.
1.3 Expenses and Taxes. The Grantor shall pay all Call
Option expenses, taxes and other charges payable in respect of the
issue of this Call 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 Put 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 Call Option or the Call Option Shares at any
time, except as provided in this Section 2.
2.2 Restrictions Under Securities Act. Neither this Call
Option nor the Call Option Shares have been registered under the
Securities Act of 1933, as amended (the "Securities Act") or under
the securities laws of any state. This Call Option may not be
exercised and neither this Call Option nor the Call 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 Call Option) and (ii) unless and
until one of the following has occurred: (1) registration of this
Call Option or the Call 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 Call Option).
2.3 Ownership of Call Option. Grantor and Escrow Agent may
deem and treat the person in whose name this Call 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 Call Option,
Optionholder shall pay an aggregate exercise price for all, but
not less than all, of the Call Option Shares being purchased at a
price determined in accordance with Section 1.4 of the Agreement
(the "Remaining Shares Call Exercise Price").
4. TRANSFER OF CALL OPTION SHARES TO ESCROW
All of the Call Option Shares will be transferred and
delivered with the signing of this Call 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 Call Option Shares to Optionholder in accordance
with the terms of this Call Option.
5. NOTICE
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 (return receipt requested) to
such holder at the last address shown on the books of the Escrow
Agent of which address such Optionholder 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 Call Option Shares shall be delivered at, or sent by
certified or registered mail to, each such Optionholder at such
Optionholder'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 Grantor 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 Grantor 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 Call 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 Call 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 CALL OPTION
Upon receipt of evidence satisfactory to the Escrow Agent of
the loss, theft, mutilation or destruction of the Call 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
Call Option, the Escrow Agent shall cause the Grantor to make and
deliver a new Call Option, of like tenor, in lieu of such lost,
stolen. destroyed or mutilated Call Option.
8. GENERAL PROVISIONS
8.1 Amendment. This Call Option may be amended only by
agreement signed by both the Grantor and the Optionholder.
8.2 Successors and Assigns. This Call 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 Call Option are for
convenience only and do not constitute a part of this Call Option
or such Exhibits.
8.4 Complete Agreement. This Call 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 Call Option and
the Exhibits hereto shall be governed by the laws of the State of
Missouri.
8.6 Definitions. Unless otherwise defined in this Call
Option, all capitalized terms herein shall have the meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the Grantor has executed this Call Option
this 6th day of February, 2001.
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
