WARRANT PURCHASE AGREEMENT
Exhibit
10.2
THIS WARRANT PURCHASE AGREEMENT (this
“Agreement”)
entered into as of the 2nd day of
November 2010, by and between SRKP 23, Inc., a Delaware corporation with an
address at 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx by the Xxx, XX 00000
(the “Company”)
and [NAME AND ADDRESS OF PURCHASER] (the “Purchaser”).
WHEREAS,
the Purchaser desires to purchase, and the Company desires to sell, a warrant in
the form attached hereto as Exhibit A (the “Warrant”)
to purchase 496,986 (the “Warrant Shares”)
of the Company’s common stock, par value $.0001 per share (the “Common
Stock”), upon the terms and conditions hereof.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, the Purchaser and the Company hereby agree as follows:
SECTION
1: SALE OF THE WARRANT
1.1
Sale of the
Warrant. Subject to the terms and conditions hereof, the
Company will sell and deliver to the Purchaser and the Purchaser will purchase
from the Company, upon the execution and delivery hereof, the Warrant for a per
share purchase price equal to $0.0003523 (the “Purchase
Price”).
1.2 Repurchase
Option. For a period of one year from the date of this
Agreement (the “Repurchase Period”), the Company shall have an irrevocable,
exclusive option, but not the obligation, to repurchase all or any portion of
the Warrant (the "Repurchase Option"). The Repurchase Option shall be
exercisable at a price equal to the Purchase Price (the "Repurchase Price"). The
Repurchase Option shall be exercisable by the Company, at any time, by
delivering written notice (the “Repurchase Notice”) to the Purchaser of its
election to exercise its Repurchase Option. The Repurchase Notice shall provide
(i) that the Company is exercising its Repurchase Option in connection with this
Agreement; (ii) whether the Company is repurchasing all of or a portion of, the
Warrant (the Repurchased Warrant”) and (iii) the aggregate Repurchase Price to
be paid for the Repurchased Warrant. The Repurchase Notice shall be
accompanied by a check made out in the name of the Purchaser, or other
immediately available funds, for an amount equal to the Repurchase Price. Upon
delivery of the Repurchase Notice and the Repurchase Price, the Warrant so
repurchased and all rights and interests therein or relating thereto shall be
deemed canceled and the Company shall have the right to retain and transfer to
its own name the Repurchased Warrant. The Repurchase Option set forth in this
Section may be assigned by the Company in whole or in part in its sole
discretion. The Repurchase Option set forth in this Section may be assigned by
the Company in whole or in part in its sole discretion. If at any time
during the Repurchase Period, the Company consummates (a) a merger or other
business combination with an operating business or (b) a transaction pursuant to
which the Company ceases to be a “shell company,” as defined by Rule 12b-2 under
the Securities Exchange Act of 1934, as amended and a “blank check company,” as
defined by Rule 419 of the Securities Act of 1933, as amended, the Repurchase
Option shall terminate thereupon.
SECTION
2: CLOSING DATE; DELIVERY
2.1
Closing
Date. The closing of the purchase and sale of the Warrant
hereunder (the “Closing”)
shall be held immediately following the execution and delivery of this
Agreement.
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2.2 Delivery at Closing.
At the Closing, the Company will deliver to the Purchaser the Warrant in the
Purchaser’s name, representing the right to purchase the Warrant Shares to be
purchased by Purchaser hereunder, against payment of the Purchase
Price.
SECTION
3: REPRESENTATIONS AND WARRANTIES OF PURCHASER
The
undersigned Purchaser hereby represents and warrants to the Company as
follows:
3.1 Transfer
Restrictions. Neither the Warrant, nor, upon issuance, the
Warrant Shares, has been registered under the Securities Act of 1933, as amended
(the “Securities
Act”) and cannot be sold or otherwise transferred without an effective
registration or an exemption therefrom, and as of the date hereof, may not be
sold pursuant to the exemptions provided by Section 4(1) of the Securities Act,
in accordance with the letter from Xxxxxxx X. Xxxxx, Chief of the Office of
Small Business Policy of the Securities and Exchange Commission’s Division of
Corporation Finance, to Xxx Worm of NASD Regulation, Inc., dated January 21,
2000.
3.2 Experience. The
undersigned has such knowledge and experience in financial and business matters
that the undersigned is capable of evaluating the merits and risks of investment
in the Company and of making an informed investment decision. The
undersigned has adequate means of providing for the undersigned's current needs
and possible future contingencies and the undersigned has no need, and
anticipates no need in the foreseeable future, to sell the Warrant for which the
undersigned subscribes or, upon issuance, the Warrant Shares. The
undersigned is able to bear the economic risks of this investment and,
consequently, without limiting the generality of the foregoing, the undersigned
is able to hold the Warrant or, upon issuance, the Warrant Shares, for an
indefinite period of time and has sufficient net worth to sustain a loss of the
undersigned's entire investment in the Company in the event such loss should
occur. Except as otherwise indicated herein, the undersigned is the sole party
in interest as to its investment in the Company, and it is acquiring the Warrant
solely for investment for the undersigned’s own account and has no present
agreement, understanding or arrangement to subdivide, sell, assign, transfer or
otherwise dispose of all or any part of the Warrant subscribed for or, upon
issuance, the Warrant Shares, to any other person.
3.3 Investment; Access to
Data. The undersigned has carefully reviewed and understands
the risks of, and other considerations relating to, a purchase of the Warrant
and the underlying Warrant Shares and an investment in the Company. The
undersigned has been furnished materials relating to the Company, the private
placement of the Warrants or anything else that it has requested and has been
afforded the opportunity to ask questions and receive answers concerning the
terms and conditions of the offering and obtain any additional information which
the Company possesses or can acquire without unreasonable effort or
expense. Representatives of the Company have answered all inquiries
that the undersigned has made of them concerning the Company, or any other
matters relating to the formation and operation of the Company and the offering
and sale of the Warrants. The undersigned has not been furnished any offering
literature other than the materials that the Company may have provided at the
request of the undersigned; and the undersigned has relied only on such
information furnished or made available to the undersigned by the Company as
described in this Section. The undersigned is acquiring the Warrant for
investment for the undersigned's own account, not as a nominee or agent and not
with the view to, or for resale in connection with, any distribution
thereof. The undersigned acknowledges that the Company is a start-up
company with no current operations, assets or operating history, which may
possibly cause a loss of Purchaser’s entire investment in the
Company.
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3.4 Authorization. (a)
This Agreement, upon execution and delivery thereof, will be a valid and binding
obligation of Purchaser, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws of general application affecting enforcement of creditors' rights
generally.
(b) The
execution, delivery and performance by Purchaser of this Agreement and
compliance therewith and the purchase and sale of the Warrant will not result in
a violation of and will not conflict with, or result in a breach of, any of the
terms of, or constitute a default under, any provision of state or Federal law
to which Purchaser is subject, or any mortgage, indenture, agreement,
instrument, judgment, decree, order, rule or regulation or other restriction to
which the Purchaser is a party or by which the undersigned Purchaser is bound,
or result in the creation of any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of Purchaser pursuant to any such
term.
3.5 Accredited
Investor. Purchaser is an accredited investor as defined in
Rule 501(a) of Regulation D under the Securities Act of 1933, as
amended.
SECTION
4: MISCELLANEOUS
4.1 Governing
Law. This Agreement shall be governed in all respects by the
laws of the State of Delaware, without regard to conflicts of laws principles
thereof.
4.2 Survival. The
terms, conditions and agreements made herein shall survive the
Closing.
4.3 Notice. All
notices provided for in this Agreement shall be in writing signed by the party
giving such notice, and delivered personally or sent by overnight courier, mail
or messenger against receipt thereof or sent by registered or certified mail, or
by facsimile transmission or similar means of communication. Notices shall be
deemed to have been received on the date of personal delivery or telecopy or
attempted delivery. Notice shall be delivered to the parties at the
following addresses:
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If
to the Company:
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SRKP
23, Inc.
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0000
Xxxxx Xxxxx Xxxxx,
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Xxxxx
000
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Lauderdale
by the Xxx, XX 00000
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Attn:
Xxxx Xxxxxxxxxxxx
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With
a copy to:
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Xxxxxxxxxx
& Xxxxx LLP
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000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, XX 00000
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Attention:
Xxxxx X. Xxxxxxx, Esq.
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If
to Purchaser:
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[PURCHASER
NAME AND ADDRESS]
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Either
party may, by like notice, change the address, person or telecopier number to
which notice shall be sent.
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4.4 Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
4.5 Entire Agreement; Amendment;
Waiver. This Agreement constitutes the entire and full
understanding and agreement between the parties with regard to the subject
matter hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated, except by a written instrument signed
by all the parties hereto.
4.6 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together, shall constitute one
instrument.
[The
remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the
undersigned have hereunto set their hands as of the day and year first above
written.
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SRKP
23, INC.
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By:
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Xxxxxxx
X. Xxxxxxxxx
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CEO
and Chairman
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PURCHASER
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By:
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Name:
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Title:
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Exhibit
A
SEE
EXHIBIT 4.1 TO THE COMPANY’S QUARTERLY REPORT ON FORM 10-Q
FILED
HEREWITH
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