EXHIBIT 4.7
WARRANT AGREEMENT
TO PURCHASE COMMON STOCK OF
XXXXXXX.XXX
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE
AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND SUCH LAWS PURSUANT TO
REGISTRATION OR AN EXEMPTION THEREFROM.
This Warrant Agreement (the "Agreement") is entered into this 30th day of
October, 2000, (the "Effective Date") by and between Xxxxxxx.xxx, a Nevada
corporation ("Nettaxi") and Xx. Xxxxxxx Xxxxxxx ("Holder"). For good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Issuance of Warrants. Nettaxi subject to the terms and conditions
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hereinafter set forth, hereby issues to Holder warrants (the "Warrants") to
purchase Three Hundred Fifty Thousand (350,000) shares of Nettaxi common stock,
$0.001 par value (the "Shares"). The exercise price of the Shares shall be
$0.35 per share (the "Exercise Price") subject to adjustment in accordance with
Paragraph 5 of this Agreement.
2. Term. The Warrants may be exercised at any time after the Effective Date
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set forth on the signature page hereof and before October, 2005.
3. Exercise.
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(a) Holder shall exercise the Warrants granted hereunder, in whole or
in part, by delivering to Nettaxi at the office of Nettaxi, or at such other
address as Nettaxi may designate by notice in writing to the holder hereof, the
notice of Exercise attached hereto as Exhibit A and incorporated herein by
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reference and a certified check or wire transfer in lawful money of the United
States for the Exercise Price for the entire amount of the number of Warrants
being exercise.
(b) Upon delivery of the items set forth in (a) above, Holder shall be
entitled to receive a certificate or certificates representing the Shares. Such
Shares shall be validly issued, fully paid and non-assessable.
(c) Warrants shall be deemed to have been exercised immediately prior
to the close of business on the day of such delivery, and Holder shall be deemed
the holder of record of the shares issuable upon such exercise at such time.
(d) Upon any partial exercise of the Warrants, at the request of
Nettaxi, this Agreement shall be surrendered and a new Agreement evidencing the
right to purchase the number of Shares not purchased upon such exercise shall be
issued to Holder.
4. Representations and Warranties of Holder. Holder hereby represents and
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warrants to Nettaxi as follows:
(a) Sophistication. Holder has (i) a preexisting personal or
business relationship with Nettaxi or one or more of its officers, directors, or
control persons; or (ii) by reason of Holder's business or financial experience,
or by reason of the business or financial experience or of Holder's financial
advisor who is unaffiliated with and who is not compensated, directly or
indirectly, by Nettaxi or any affiliate or selling agent of Nettaxi, Holder is
capable of evaluating the risks and merits of this investment and of protecting
Holder's own interests in connection with this investment.
(b) Accredited Investor. Holder is an "accredited investor" as
such term is defined under Regulation d of the Securities Act of 1933 as amended
(the "Securities Act").
(c) Investment Intent. Holder is purchasing the Shares solely for
its own account for investment. Holder has no present intention to resell or
distribute the Warrants or the Shares or any portion thereof. The entire legal
and beneficial interest of the Warrants is being purchased, and will be held,
for Holder's account only, and neither in whole or in part for any other person.
(d) Information Concerning Company. Prior to the date hereof,
Holder was not a shareholder of Nettaxi. Holder is aware of the business
affairs and financial condition of Nettaxi and has acquired sufficient
information about Nettaxi to make an informed and knowledgeable decision to
purchase the Warrants and the Shares.
(e) Economic Risk. Holder realizes that the purchase of the
Warrants and the Shares will be a highly speculative investment and involves a
high degree of risk. Holder is able, without impairing Purchaser's financial
condition, to hold the Warrants and/or the Shares for an indefinite period of
time and to suffer a complete loss of Holder's investment.
5. Anti-dilution Adjustments. The Warrants granted hereunder and the
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Purchase Price thereof shall be subject to adjustment from time to time upon the
happening of certain events as set forth below. Notwithstanding the above or
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any provision of this Agreement, no adjustment shall be made to the Purchase
Price or the amount of Warrants granted hereunder once the shares of common
stock of Nettaxi have been offered for sale in connection with an initial public
offering.
(a) Stock Splits and Dividends. If outstanding shares of Nettaxi
Common Stock shall be subdivided into a greater number of shares or a dividend
in Common Stock shall be paid in respect of Common Stock, the Purchase Price in
effect immediately prior to such subdivision or at the record date of such
dividend shall simultaneously with the effectiveness of such subdivision or
immediately after the record date of such dividend be proportionately reduced.
If outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Purchase Price in effect immediately prior to such combination
shall, simultaneously with the effectiveness of such combination, be
proportionately increased. When any adjustment is required to be made in the
Purchase Price, the number of Shares purchasable upon the exercise of this
Warrant shall be changed to the number determined by dividing (i) an amount
equal to the number of shares issuable upon the exercise of this Warrant
immediately prior to such adjustment, multiplied by the Purchase Price in effect
immediately prior to such adjustment, by (ii) the Purchase Price in effect
immediately after such adjustment.
(b) Reclassification, Etc. In case there occurs any
reclassification or change of the outstanding securities of Nettaxi or of any
reorganization of Nettaxi (or any other corporation the stock or securities of
which are at the time receivable upon the exercise of this Warrant) or any
similar corporate reorganization on or after the date hereof, then and in each
such case Holder, upon the exercise hereof at any time after the consummation of
such reclassification, change, or reorganization shall be entitled to receive,
in lieu of the stock or other securities and property receivable upon the
exercise hereof prior to such consummation, the stock or other securities or
property to which Holder would have been entitled upon such consummation if
Holder had exercised this Warrant immediately prior thereto, all subject to
further adjustment pursuant to the provisions of this Section.
(c) Adjustment Certificate. When any adjustment is required to be
made in the Shares or the Purchase Price pursuant to this Section, Nettaxi shall
promptly mail to the Holder a certificate setting forth (i) a brief statement of
the facts requiring such adjustment, (ii) the Purchase Price after such
adjustment and (iii) the kind and amount of stock or other securities or
property into which this Warrant shall be exercisable after such adjustment.
6. Reservation of Shares. Nettaxi shall at all times keep reserved a
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sufficient number of authorized shares of Common Stock, and shall make
appropriate provision of their issuance, to provide for the exercise of the
Warrants in full.
7. Transferability. The Warrants issued hereunder and any and all Shares
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issued upon exercise of the Warrants shall be transferable on the books of
Nettaxi by the holder hereof in person or by duly authorized attorney subject to
any restrictions imposed by applicable federal or state securities laws. It
shall be a further condition to any transfer of the Warrants that the transferor
(if any portion of the Warrants are retained) and the transferee shall receive
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and accept new Warrants, of like tenor and date, executed by Nettaxi, for the
portion so transferred and for any portion retained, and shall surrender this
Agreement executed.
8. Voting. Nothing contained in this Agreement shall be construed as
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conferring upon Holder the right to vote or to receive dividends or to consent
or receive notice as a shareholder in respect to any meeting of shareholders for
the election of directors of Nettaxi or for any other purpose not specified
herein.
9. Miscellaneous.
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(a) Amendment. This Agreement may be amended by written agreement
between Nettaxi and Holder.
(b) Notice. Any notice, demand or request required or permitted to
be given under this Agreement will be in writing and will be deemed sufficient
when delivered personally or sent by telegram or forty-eight (48) hours after
being deposited in the U.S. mail, as certified or registered mail, or with a
commercial courier service, with postage prepaid, and addressed, if to Nettaxi,
at its principal place of business, attention the President, and if to Holder,
at Holder's address as shown on the stock records of Nettaxi.
(c) Further Assurances. Both parties agree to execute any
additional documents necessary to carry out the purposes of this Agreement.
(d) Severability. If any provision of this Agreement is held by
any court of competent jurisdiction to be illegal, unenforceable or void, such
provision will be enforced to the greatest extent possible and all other
provisions of this Agreement will continue in full force and effect.
(e) Governing Law. This Agreement will be interpreted and enforced
in accordance with California Law as applied to agreements made and performed in
California.
(f) Survival. The representations and warranties, of the parties
hereto set forth in this Agreement shall survive the closing and consummation of
the transactions contemplated hereby for a period of three (3) years from the
date hereof.
(g) Entire Agreement; Successors and Assigns. This Agreement and
the documents and instruments attached hereto constitute the entire agreement
between Holder and Nettaxi relative to the subject matter hereof. Any previous
agreements between the parties are superseded by this Agreement. Subject to any
exceptions specifically set forth in this Agreement, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
executors, administrators, heirs, successors and assigns of the parties.
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(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(i) Headings. The headings of the Paragraphs of this Agreement
are for convenience and shall not by themselves determine the interpretation of
this Agreement.
(j) Attorney Fees. If any action is brought to interpret or
enforce the terms of this Agreement, the prevailing party in such action shall
be entitled to recover its attorneys' fees and costs incurred in connection with
such action.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed and delivered by their duly authorized officers as of the Effective Date.
NETTAXI XXXXXXX.XXX
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Its: Chief Executive Officer
HOLDER: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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