Exhibit 4.3
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NOTE: SEE ATTACHED SCHEDULE FOR OMITTED INFORMATION
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: ______________
Purchase Price: $.____
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, ___________ (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). 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 $._____, 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:
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AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 1
(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 "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: Juan Carlos
Gaviria, Alvaro Restrepo, Paul Saunier, Eric Ifflen, Emilio Martinez,
Carlos Bedoya and Alfredo Polo.
(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.
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1.1. Vesting. Holder's right to purchase 50% (25,000) of the
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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
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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
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AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 2
"Notice of Exercise") substantially in the form attached hereto as Exhibit
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A, (ii) evidence satisfactory to the Company of the authority of the person
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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").
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
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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
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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
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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
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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
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AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 3
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.
4. Rights as a Shareholder. Holder shall not have any rights as a
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shareholder of the Company with respect to the shares subject to this Warrant.
5. Securities Law Requirements. Neither this Warrant nor the Warrant
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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.
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COMMON STOCK PURCHASE WARRANT - Page 4
6. Transfer Restrictions. This Warrant shall be exercisable only by
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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
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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
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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
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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,
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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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AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 5
DATED as of March 1, 2000
DIAL-THRU INTERNATIONAL CORPORATION
By: ________________________________
Name: Roger D. Bryant
Title: Chairman
Address: 8100 Jetstar, Suite 100
Irving, Texas 75063
Fax: (972) 929-1616
HOLDER:
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____________________________________
Printed Name: ______________________
Address: _____________________
_____________________
Fax: ________________
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AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT - Page 6
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,
______________/1/ 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: ___________________
___________________________________________
(Name must conform to name of Holder as
specified on the face of the Warrant)
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address of Holder:
____________________________________________
____________________________________________
____________________________________________
Date of exercise: _____________
_________________________
/1/ 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.
Schedule of
Information Omitted from Form of Amended and Restated
Common Stock Purchase Warrant
(8 Warrants Total to purchase 50,000 shares each)
Holder Exercise Price
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Paul Sanier $0.53
Alvaro Rostrepo $0.46
Eric Iffland $0.55
Emilio Martinez $0.80
Juan Carlos Gaveria (No. 1) $0.88
Juan Carlos Gaveria (No. 2) $0.88
Alfredo Polo $0.81
Carlos Bedoya $0.81