COMMON STOCK PURCHASE AGREEMENT
Exhibit
10.1
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 [PURCHASER NAME AND ADDRESS]
(the “Purchaser”).
WHEREAS,
the Purchaser desires to purchase, and the Company desires to sell, an aggregate
of 496,988 (the
“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 SHARES
1.1 Sale of the
Shares. 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 Shares for a per
share purchase price equal to $0.0007046 (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 Shares (the "Repurchase
Option"). The Repurchase Option shall be exercisable at a price equal to
the sum of (a) the Purchase Price and (b) any additional cash contributions to
capital made by the Purchaser (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) the
number of Shares the Company is repurchasing (the “Repurchased Shares”) and
(iii) the aggregate Repurchase Price to be paid for the Repurchased
Shares. 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 Shares 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 Shares. 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.
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SECTION
2: CLOSING DATE; DELIVERY
2.1 Closing
Date. The closing of the purchase and sale of the Shares
hereunder (the “Closing”) shall be held immediately following the execution and
delivery of this Agreement.
2.2 Delivery at Closing.
At the Closing, the Company will deliver to the Purchaser a stock certificate
registered in the Purchaser’s name, representing the number of Shares to be
purchased by Purchaser hereunder, against payment of the purchase price
therefore as indicated above.
SECTION
3: REPRESENTATIONS AND WARRANTIES OF PURCHASER
The
undersigned Purchaser hereby represents and warrants to the Company as
follows:
3.1 Transfer of
Shares. The Shares have not been registered under the
Securities Act and cannot be sold or otherwise transferred without an effective
registration or an exemption therefrom, and as of the date of this Agreement,
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 Shares for which the
undersigned subscribes. 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 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 Shares
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 Shares subscribed for 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 Common
Stock and an investment in the Company. The undersigned has been furnished
materials relating to the Company, the private placement of the Common Stock 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 Common Stock. 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 Shares 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 Shares 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 and has
executed the statement of accredited investor annexed hereto as Exhibit
A.
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,
Xxxxx
000
Lauderdale
by the Xxx, XX 00000
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
Xxx Xxxx,
XX 00000
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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5
Exhibit
A
STATEMENT
OF ACCREDITED INVESTOR
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To:
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SRKP
23, Inc. (the “Company”)
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Ladies
and Gentlemen:
The
undersigned hereby refers to the Securities Purchase Agreement executed and
delivered to the Company by the undersigned as of the date hereof. In
connection with the subscription thereunder by the undersigned to purchase
securities of the Company, the undersigned hereby represents and warrants that
such individual or entity meets at least one of the tests listed below for an
“accredited investor” (as such term is defined under Regulation D promulgated
pursuant to the Securities Act of 1933, as amended).
“Accredited Investors” are accorded
special status under the federal securities laws. Individuals who hold certain
positions with an issuer or its affiliates, or who have certain minimum
individual income or certain minimum net worth (each as described below) may
qualify as Accredited Investors. Partnerships, corporations or other
entities may qualify as Accredited Investors if they fulfill certain financial
and other standards, or if all of their equity owners have incomes and/or net
worth which qualify them individually as Accredited Investors, and trusts may
qualify as Accredited Investors if they meet certain financial and other tests
(as described below).
You may
qualify as an Accredited Investor under Regulation D promulgated under the
Securities Act of 1933 (the “1933 Act”) if you meet any of the following tests
(please check all that apply):
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¨
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The undersigned is an
individual who is a director or executive officer of the
Company. An “executive officer” is the president, a vice
president in charge of a principal business unit, division or function
(such as sales, administration or finance), any other officer who performs
a policy making function or any other person who performs similar policy
making functions for the Company.
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¨
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The undersigned is an
individual that (1) had individual income of more than $200,000 in each of
the two most recent fiscal years and reasonably expects to have individual
income in excess of $200,000 in the current year, or (2) had joint income
together with the undersigned’s spouse in excess of $300,000 in each of
the two most recent fiscal years and reasonably expects to have joint
income in excess of $300,000 in the current
year. “Income” means adjusted gross income, as reported
for federal income tax purposes, increased by the following
amounts: (i) any tax exempt interest income under Section 103
of the Internal Revenue Code (the “Code”) received, (ii) any losses
claimed as a limited partner in a limited partnership as reported on
Schedule E of Form 1040, (iii) any deduction claimed for depletion under
Section 611 of the Code or (iv) any amount by which income has been
reduced in arriving at adjusted gross income pursuant to the provisions of
Section 1202 of the Code. In determining personal income,
however, unrealized capital gains should not be
included.
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¨
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The undersigned is an
individual with individual net worth, or combined net worth together with
the undersigned’s spouse, in excess of $1,000,000. “Net
worth” means the excess of total assets at fair market value over total
liabilities, excluding principal
home.
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o
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The undersigned is a Trust with
total assets in excess of $5,000,000, was not formed for the
specific purpose of acquiring securities of the Company, and the purchase
of the securities is directed by a person with such knowledge and
experience in financial and business matters that he is capable of
evaluating the risks and merits of the prospective investment in such
securities.
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¨
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The undersigned is a
corporation, partnership, limited liability company or limited liability
partnership that has total assets in excess of $5,000,000 and was
not formed for the specific purpose of acquiring securities of the
Company.
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¨
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The undersigned is an entity in
which all of its equity owners are “accredited
investors”.
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Dated:
_______________, 2010
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Very
truly yours,
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[NAME
OF PURCHASER]
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By:
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Name:
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Title:
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