FORM OF WARRANT PURCHASE AGREEMENT
Exhibit
10.2
FORM
OF WARRANT PURCHASE AGREEMENT
THIS
WARRANT PURCHASE AGREEMENT (this “Agreement”)
entered into as of the 11th
day of
October, 2007, 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 of Investor], an individual with an address at [Address of Investor]
(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 [Number of Shares] shares (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 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 purchase price equal to [Aggregate
Purchase Price] (the “Purchase
Price”).
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.
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 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 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, but may not be sold pursuant to the exemptions provided
by
Section 4(1) of the Securities Act or Rule 144 under 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 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 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 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 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.
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
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.
4.4
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.
4.5
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.
IN
WITNESS WHEREOF,
the
undersigned have hereunto set their hands as of the day and year first above
written.
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By:
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/s/
Xxxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxxx
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Title:
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President
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[Name of Investor]
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Exhibit
A
(See
Exhibit 4.1 to this registration statement for form of warrant)
