WARRANT CANCELLATION AGREEMENT
Exhibit
10.4
This
Warrant Cancellation Agreement (this “Agreement”)
is
entered into effective as of
May
10,
2007 (the “Effective
Date”)
by and
among the investors set forth on the signature page (the “Investors”)
and
Xxxxx Networks, Inc., a Nevada corporation (“Xxxxx”
and
collectively with the Investors, the “Parties”).
WHEREAS,
the
Parties previously entered into that certain Waiver Agreement, dated as of
January 18, 2007 (the “Waiver
Agreement”);
and
WHEREAS,
pursuant
to the terms set forth in the Waiver Agreement, Xxxxx
issued to the Investors, warrants exercisable for the purchase of up to an
aggregate of 10,000,000 shares of Xxxxx common stock (each, in the amount set
forth opposite the name of each respective Investor on Schedule
A
hereto)
with an exercise price of $0.06 per share (the “Warrants”).
NOW,
THEREFORE, the
Parties hereto, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, hereby agree as follows:
1.
Xxxxx
shall have the option to purchase from the Investors, in cash or same day funds,
each of the Warrants at any time from the Effective Date until the expiration
of
the Warrants, for an aggregate purchase price of $500,000 (such payment shall
be
allocated among the Investors in the manner set forth on Schedule
A
hereto)
(the “Cash
Amount”).
Upon
each Investor’s receipt of its portion of the Cash Amount, each Investor shall
immediately return its Warrant to Xxxxx for cancellation.
2.
The
terms
of this Agreement are contractual in nature and not mere recitals. This
Agreement contains the entire understanding of the parties with respect to
the
subject matter hereof, and there are no representations, warranties, covenants
or undertakings, oral or otherwise, that are not expressly set forth herein.
No
modification of this Agreement is valid and enforceable unless executed in
writing with the same formality as this present Agreement and by the same
parties. This Agreement shall be construed and governed in accordance with
the
laws of the State of California. If any court shall subsequently deem any
portion of this Agreement to be invalid, such designation shall not affect
the
remaining provisions of this Agreement, which will continue in full force and
effect. This Agreement is binding upon the parties hereto, their respective
xxxxxx, xxxxx, xxxxxxx, legal representatives, attorneys, successors and
assigns. Each party shall pay his or its fees and expenses in connection with
the preparation and execution of this Agreement.
3. The
parties to this Agreement hereby state that they have read the foregoing
Agreement, that they have the requisite authority to enter into this Agreement,
that they understand the contents hereof, that their execution of this Agreement
is voluntary and that they have relied upon or have had the opportunity to
seek
the legal advice of the attorneys of their own choice prior to executing this
Agreement.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Parties have caused this Warrant Cancellation Agreement
to
be duly executed as of the date first above written.
XXXXX
NETWORKS, INC.
a
Nevada
corporation
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
President & CEO
AJW
PARTNERS, LLC
By:
SMS
Group, LLC
/s/
Xxxxx X. Xxxxxxxx
Xxxxx
X.
Xxxxxxxx
Manager
AJW
OFFSHORE, LLC
By:
First
Street Manager II, LLC
/s/
Xxxxx X. Xxxxxxxx
Xxxxx
X.
Xxxxxxxx
Manager
AJW
QUALIFIED PARTNERS, LLC
By:
AJW
Manager, LLC
/s/
Xxxxx X. Xxxxxxxx
Xxxxx
X.
Xxxxxxxx
Manager
NEW
MILLENNIUM CAPITAL PARTNERS II, LLC
By:
First
Street Manager II, LLP
/s/
Xxxxx X. Xxxxxxxx
Xxxxx
X.
Xxxxxxxx
Manager
Schedule
A
|
Investor
|
Warrant
Shares
|
Allocation
of Cash Amount
|
|
AJW
PARTNERS, LLC
|
1,220,000
|
$61,000
|
|
AJW
OFFSHORE, LLC
|
5,960,000
|
$298,000
|
|
AJW
QUALIFIED PARTNERS, LLC
|
2,700,000
|
$135,000
|
|
NEW
MILLENNIUM CAPITAL PARTNERS II, LLC
|
120,000
|
$6,000
|
