EXHIBIT 4.3
INTERNET
This Agreement is made and entered into as of January 11, 1999 by Internet
Extra Corporation, a California corporation (the "Company"), and Xxxxxxx Xxxxx
(the "Purchaser").
1. Issuance of Warrant.
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1.1 In consideration for the agreed upon terms and conditions to be
met by the Purchaser, the sufficiency of which is hereby acknowledged, the
Company shall issue to the Purchaser a Common Stock Warrant ("Warrant") in the
form attached to this agreement as Exhibit A, exercisable for up to 500,000
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shares of Common Stock ("Shares"), at a price of $0.50 per share. The terms and
conditions for exercise of the Warrants are set forth in the Warrant.
2. Investment Representations.
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2.1 The Purchaser represents and warrants to the Company as follows:
(a) The Purchaser is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire this Warrant and the
Shares. The Purchaser is acquiring this Warrant and will acquire the Shares for
its own account for investment purposes only and not with a view to, or for the
resale in connection with, any "distribution" for purposes of the Securities Act
of 1933, as amended (the "Act").
(b) The Purchaser understands that this Warrant and the Shares
have not been registered under the Act in reliance upon a specific exemption,
which exemption depends upon, among other things, the bona fide nature of its
investment intent as expressed herein. In this connection, the Purchaser
understands that, in the view of the Securities and Exchange Commission ("SEC"),
the statutory basis for such exemption may be unavailable if its representation
was predicated solely upon a present intention to hold the Warrant or the Shares
for a period of one year or any other fixed period in the future.
(c) The Purchaser further understands that the Warrant and the
Shares must be held indefinitely unless subsequently registered under the Act or
unless an exemption from registration is otherwise available. Moreover, the
Purchaser understands that the Company is under no obligation to register the
Warrant or the Shares. In addition, the Purchaser understands that the Warrant
and the Shares will be imprinted with a legend which prohibits the transfer of
the Warrant or the Shares unless they are registered or such registration is not
required in the opinion of counsel for the Company.
(d) The Purchaser is aware of the provisions of Rule 144,
promulgated under the Act, which in substance, permit limited public resale of
"restricted securities" acquired, directly or indirectly from the issuer (or
from an affiliate of the issuer), in a non-public offering subject to the
satisfaction of certain conditions, including, in case the purchaser has held
the securities less than three
years or is an affiliate of the Company: (1) the resale occurring not less than
two years after the party has purchased and paid for the securities to be sold;
(2) the availability of certain public information about the Company; (3) the
sale being made through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said terms are defined under the
Securities Exchange Act of 1934); (4) the amount of securities being sold during
any three-month period not exceeding certain specified limitations and (5) the
filing of a Notice of Sale on Form 144 as appropriate.
(e) The Purchaser further understands that at the time it wishes
to sell the Warrant or the Shares there may be no public market upon which to
make such a sale, and that, even if such a public market then exists the Company
may not be satisfying the current public information requirements of Rule 144,
and that, in such event, the Purchaser would be precluded from selling the
Warrant or Shares under Rule 144 unless (1) a three-year minimum holding period
had been satisfied and (2) it was not at the time of sale nor at any time during
the three-month period prior to such sale an affiliate of the Company.
(f) The Purchaser further understands that in the event all of
the applicable requirements of Rule 144 are not satisfied, registration under
the Act, compliance with Regulation A or some other registration exemption will
be required; and that, notwithstanding the fact that Rule 144 is not exclusive,
the staff of the SEC has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales and that such persons and their respective brokers who participate in such
transaction do so at their own risk.
2.2 Legends.
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(a) The Warrant shall be endorsed with the following legend (in
addition to any legend required by applicable state securities laws):
THE RIGHTS TO ACQUIRE SHARES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SALE OR DISPOSITION MAYBE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933.
(b) Each certificate representing Shares shall be endorsed with
the following legend (in addition to any legend required by applicable state
securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT."
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The Company need not register a transfer of the Warrant or of Shares unless the
conditions specified in the foregoing legend, are satisfied. the Company may
also instruct its transfer agent not to register the transfer of the Warrant or
any of the Shares unless the conditions specified in the foregoing legends are
satisfied.
2.3 Removal of Legends and Transfer Restrictions. The legend
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relating to the Act endorsed on the Warrant or a stock certificate pursuant to
Section 2.2 and the stop transfer instructions with respect to the Warrant or
the Shares represented by such certificate shall be removed and the Company
shall issue a certificate without such legend to the holder of the Warrant or
such Shares if such Shares are registered under the Act and a prospectus meeting
the requirements of Section 10 of the Act is available, or if such holder
provides to the Company an opinion of counsel for such holder of the Warrant or
the Shares reasonably satisfactory to the Company or a no-action letter or
interpretive opinion of the staff of the SEC to the effect that a public sale,
transfer or assignment of such Shares may be made without registration and
without compliance with any restriction such as Rule 144.
3. Notices. All notices and other communications required or permitted
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hereunder shall be effective upon receipt and shall be in writing and may be
delivered in person, by telecopy, electronic mail, overnight delivery service or
U.S. mail, in which event it may be mailed by first-class, certified or
registered, postage prepaid, addressed (a) if to Purchaser, at the address
indicated on the signature page or at such other address as Purchaser furnishes
in writing to the Company or (b) if to the Company, at 000 Xxxxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other address as the
Company shall have furnished to the Purchaser in writing.
4. Assignment. The Purchaser shall not assign this Agreement or any
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rights or obligations under it without the prior consent of the Company.
Subject to the foregoing, this Agreement shall bind and benefit the respective
parties to this Agreement and their successors and assigns.
5. Governing Law. This Agreement shall be governed in all respects by
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the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
6. Waiver. The waiver of one breach or default shall not constitute the
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waiver of any subsequent breach or default. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired.
7. Amendment. Neither this Agreement nor any provisions hereof may be
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changed, waived, discharged or terminated orally, but only by a signed statement
in writing.
8. Agreement. This Agreement constitutes the full and entire
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understanding and agreement between the parties with regard to the subject
matter of this Agreement.
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9. Counterparts. This Agreement may be signed in one or more
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counterparts, each of which shall be an original, and all of which together
shall be deemed to constitute one instrument.
10. Titles and Subtitles. The titles of the paragraphs and subparagraphs
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of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
11. California Corporate Securities Law. THE SALE OF THE SECURITIES WHICH
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ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES
OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO
SUCH QUALIFICATION, IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED
UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date set forth at the beginning of this Agreement.
INTERNET EXTRA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Chairman & Chief Executive Officer
Dated: January 11, 1999
XXXXXXX XXXXX
By: /s/ Xxxxxxx Xxxxx
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Dated: January 11, 1999
Address for Notices:
