AGREEMENT
Exhibit
10.2
AGREEMENT
This
Agreement (the “Agreement”) is made as of the 27th day of February, 2006 by and
between SRKP 4, Inc., a Delaware corporation having its offices at 00000
Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, XX 00000 (the “Issuer”), Xxxxxx
Xxxxxxxxxxxx, an individual with an address at 000 0xx
Xxxxxx,
Xxx Xxxx, XX 00000, Xxxxxxx Xxxxxxxxx, an individual with an address at c/o
WestPark Capital, Inc., 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx,
XX
00000, Xxxxxx Xxxxxxx, an individual with an address at c/x Xxxxxxxxxxx &
Xxxxxxxx Xxxxxxxxx Xxxxxx LLP, 00000 Xxxxx Xxxxxx Xxxxxxxxx, 0xx
Xxxxx,
Xxx Xxxxxxx, XX 00000, Xxxxxxx X. Xxxxxxxxxxxx, an individual with an address
at
c/o WestPark Capital, Inc., 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx,
XX
00000, and Xxxxx Xxxxxxx, an individual with an address at 0000 Xxxxxx xx
xxx
Xxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000, c/o West Park Capital, Inc. (each
individually, the “Seller” and collectively, the “Sellers”).
W
I T N E S S E T H:
WHEREAS,
the Sellers are the collective owners of 2,700,000 shares of the Issuer’s common
stock, par value $.0001 per share (“Common Stock”), and
WHEREAS,
each Seller desires to sell to the Issuer, and the Issuer desires to re-purchase
from each Seller, the amount of shares of Common Stock listed on Schedule
A,
attached hereto, equaling an aggregate amount of 2,700,000 shares of Common
Stock (the “Shares”), on and subject to the terms of this
Agreement;
WHEREFORE,
the parties hereto hereby agree as follows:
1. Sale
of the Shares.
Subject
to the terms and conditions of this Agreement, and in reliance upon the
representations, warranties, covenants and agreements contained in this
Agreement, the Sellers shall sell the Shares to the Issuer, and the Issuer
shall
re-purchase the Shares from the Sellers, for a purchase price equal to an
aggregate sum of two hundred thousand dollars ($200,000), less the aggregate
liabilities of Issuer resulting from fees and disbursements of its attorneys,
accountants and other service providers (the “Professional Fees”) incurred by
the Issuer on or prior to completion of the Merger (as defined below) (the
“Purchase Price”). Each Seller shall be entitled to his or her own pro
rata
share of
the Purchase Price.
2. Closing.
(a) The
purchase and sale of the Shares shall take place at a closing (the “Closing”),
to occur concurrently with the completion of the merger transaction (the
“Merger”) contemplated by that certain Agreement and Plan of Merger of even date
herewith (the “Merger Agreement”) among the Issuer, Cougar Biotechnology, Inc.
and SRKP Acquisition Corp. The parties hereto shall have no obligation to
complete the Closing in the event the Merger is not consummated.
(b) At
the
Closing:
(i)
The
Sellers shall deliver to the Issuer certificates representing the Shares,
duly
endorsed in form for transfer to the Issuer.
(ii)
The
Issuer shall pay to each Seller such Seller’s pro
rata
share of
the Purchase Price for the Shares.
(iii)
At
and at any time after the Closing, the parties shall duly execute, acknowledge
and deliver all such further assignments, conveyances, instruments and
documents, and shall take such other action consistent with the terms of
this
Agreement to carry out the transactions contemplated by this Agreement. Without
limiting the foregoing, the Issuer agrees that it shall cause its current
management to execute such certificates, auditor representation letters and
other representations (“Certifications”) as the Issuer may reasonably request in
order to enable the Issuer to prepare and file future reports with the
Commission, including the Issuer’s Report on Form 8-K relating to this
Agreement, and shall take such steps as may be necessary to facilitate the
Issuer’s auditor’s preparation of the financial statements and its report
related thereto for the year ended December 31, 2005. Any such Certifications
shall treat only periods and events prior to Closing.
3. Representations
and Warranties of the Issuer and Seller.
The
Issuer and Sellers hereby jointly and severally make the following
representations and warranties to each other and each only as to itself,
provided, that the Seller makes no representations and warranties other than
with respect to itself and the Shares to be sold hereunder:
(a) The
Issuer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Each Seller is a citizen of the
Unites
States of America. The Issuer has the corporate power to own its properties
and
to carry on its business as now being conducted and is duly qualified to
do
business and is in good standing in each jurisdiction in which the failure
to be
so qualified and in good standing would have a material adverse effect on
the
Issuer. Each Seller has the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby and otherwise
to carry out its obligations hereunder. The Issuer is not in violation of
any of
the provisions of its certificate of incorporation or by-laws. No consent,
approval or agreement of any individual or entity is required to be obtained
by
the Issuer in connection with the execution and performance by the Issuer
of
this Agreement or the execution and performance by the Issuer of any agreements,
instruments or other obligations entered into in connection with this Agreement.
The Issuer has no subsidiary, other than SRKP Acquisition Corp., and it does
not
have any equity investment or other interest, direct or indirect, in, or
any
outstanding loans, advances or guarantees to or on behalf of, any domestic
or
foreign individual or entity.
(b) The
Issuer has authorized capital stock consisting of 100,000,000 shares of Issuer
Common Stock, and 10,000,000 shares of preferred stock, par value $.0001
per
share (the “Preferred Stock”), of which 2,700,000 shares of Common Stock,
including the Shares, and no shares of Preferred Stock are presently issued
and
outstanding. Sellers own the Shares free and clear of all any
and
all liens, claims, encumbrances, preemptive rights, right of first refusal
and
adverse interests of any kind.
The
Issuer has not created or authorized any series of Preferred Stock and has
no
obligation or understanding to do so.
(c) There
is
no private or governmental action, suit, proceeding, claim, arbitration or
investigation pending before any agency, court or tribunal, foreign or domestic,
or, to the Issuer’s Best Knowledge, threatened against the Issuer or any of its
properties or any of its officers or directors (in their capacities as such).
There is no judgment, decree or order against the Issuer that could prevent,
enjoin, alter or delay any of the transactions contemplated by this Agreement.
The term “Best Knowledge” of
the
Issuer shall mean and include (i) actual knowledge and (ii) that knowledge
which
a prudent businessperson would reasonably have obtained in the management
of
such Person’s business affairs after making due inquiry and exercising the due
diligence which a prudent businessperson should have made or exercised, as
applicable, with respect thereto. Actual or imputed knowledge of any director
or
officer or Sellers shall be deemed to be knowledge of the Issuer.
-
2 -
(d) There
are
no material claims, actions, suits, proceedings, inquiries, labor disputes
or
investigations (whether or not purportedly on behalf of the Issuer) pending
or,
to the Issuer’s Best Knowledge, threatened against the Issuer or any of its
assets, at law or in equity or by or before any governmental entity or in
arbitration or mediation. No bankruptcy, receivership or debtor relief
proceedings are pending or, to the best of the Issuer’s knowledge, threatened
against the Issuer.
(e) The
Issuer has complied with, is not in violation of, and has not received any
notices of violation with respect to, any federal, state, local or foreign
Law,
judgment, decree, injunction or order, applicable to it, the conduct of its
business, or the ownership or operation of its business. References in this
Agreement to “Laws” shall refer to any laws, rules or regulations of any
federal, state or local government or any governmental or quasi-governmental
agency, bureau, commission, instrumentality or judicial body (including,
without
limitation, any federal or state securities law, regulation, rule or
administrative order).
(f) The
Issuer has properly filed all tax returns required to be filed and has paid
all
taxes shown thereon to be due. To the Best Knowledge of the Issuer, all tax
returns previously filed are true and correct in all material respects.
(g) Xxxxxxx
Xxxxxxxxx is the President and director of the Issuer. Xxxxxxx Xxxxxxxxxxxx
is
the Secretary, Chief Financial Officer and director of the Issuer. The Issuer
has no other officers, directors or employees.
(h) The
Issuer has no outstanding liabilities or obligations to any party except
as
reflected on the Issuer’s Form 10-QSB for the quarter ended September 30, 2005,
other than charges since such date similar to those incurred in past periods
and
consistent with past practice, all of which will be discharged prior to or
at
the Closing so that, at the Closing, the Issuer will have no direct, contingent
or other obligations of any kind or any commitment or contractual obligations
of
any kind and description.
(i) All
of
the business and financial transactions of the Issuer have been fully and
properly reflected in the books and records of the Issuer in all material
respects and in accordance with generally accepted accounting principles
consistently applied.
(j) The
Issuer is current with its reporting obligations under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”). None of the Issuer’s filings made
pursuant to the Exchange Act (collectively, the “Issuer SEC Documents”) contain
any misstatements of material fact or omit to state a material fact necessary
to
make the statements made therein not misleading. The Issuer SEC Documents,
as of
their respective dates, complied in all material respects with the requirements
of the Exchange Act, and the rules and regulations of the Commission thereunder,
and are available on the Commission’s XXXXX system. There has not occurred any
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Issuer, from that set forth in the Issuer’s
Quarterly Report on Form 10-QSB for the quarter ended September 30, 2005.
(k) As
of the
Closing, the Issuer will have assets sufficient to satisfy its payment
obligations set forth in Section 1 hereof and the redemption contemplated
hereby
shall be permitted by the Delaware General Corporation Law. The execution
and
delivery of this Agreement by the Issuer and Sellers and the consummation
of the
transactions contemplated by this Agreement will not result in any material
violation of the Issuer’s certificate of incorporation or by-laws or any
applicable Law, including without limitation, the Delaware General Corporation
Law.
-
3 -
(l) All
representations, covenants and warranties of the Issuer and Sellers contained
in
this Agreement shall be true and correct on and as of the Closing Date with
the
same effect as though the same had been made on and as of such
date.
4. Termination
by Mutual Agreement.
This
Agreement may be terminated at any time by mutual consent of the parties
hereto,
provided that such consent to terminate is in writing and is signed by each
of
the parties hereto.
5. Miscellaneous.
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties, superseding and
terminating any and all prior or contemporaneous oral and written agreements,
understandings or letters of intent between or among the parties with respect
to
the subject matter of this Agreement. No part of this Agreement may be modified
or amended, nor may any right be waived, except by a written instrument which
expressly refers to this Agreement, states that it is a modification or
amendment of this Agreement and is signed by the parties to this Agreement,
or,
in the case of waiver, by the party granting the waiver. No course of conduct
or
dealing or trade usage or custom and no course of performance shall be relied
on
or referred to by any party to contradict, explain or supplement any provision
of this Agreement, it being acknowledged by the parties to this Agreement
that
this Agreement is intended to be, and is, the complete and exclusive statement
of the agreement with respect to its subject matter. Any waiver shall be
limited
to the express terms thereof and shall not be construed as a waiver of any
other
provisions or the same provisions at any other time or under any other
circumstances.
(b) Severability.
If any
section, term or provision of this Agreement shall to any extent be held
or
determined to be invalid or unenforceable, the remaining sections, terms
and
provisions shall nevertheless continue in full force and effect.
(c) Notices.
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,
return receipt requested, or by facsimile transmission or similar means of
communication if receipt is confirmed or if transmission of such notice is
confirmed by mail as provided in this Section 6(c). 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:
| If to the Issuer: |
c/o
Xxxxxxx Xxxxxxxxx, President
|
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Facsimile:
(000) 000-0000
| With a copy to: |
Xxxxx
Xxxxxxx, Esq.
|
Xxxxxxx
Xxxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Facsimile:
(000) 000-0000
-
4 -
| If to Sellers: |
c/o
SRKP 4, Inc.
|
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Facsimile:
(000) 000-0000
| With a copy to: |
Xxxxx
Xxxxxxx, Esq.
|
Xxxxxxx
Xxxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Facsimile:
(000) 000-0000
Either
party may, by like notice, change the address, person or telecopier number
to
which notice shall be sent.
(d) Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of
the
State of New York applicable to agreements executed and to be performed wholly
within such State, without regard to any principles of conflicts of law.
Each of
the parties hereby irrevocably consents and agrees that any legal or equitable
action or proceeding arising under or in connection with this Agreement shall
be
brought in the federal or state courts located in the County of New York
in the
State of New York, by execution and delivery of this Agreement, irrevocably
submits to and accepts the jurisdiction of said courts, (iii) waives any
defense
that such court is not a convenient forum, and (iv) consent to any service
of
process made either (x) in the manner set forth in Section 10(c) of this
Agreement (other than by telecopier), or (y) any other method of service
permitted by law.
(e) Waiver
of Jury Trial.
EACH
PARTY HEREBY
EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN THE EVENT OF ANY SUIT, ACTION
OR PROCEEDING TO ENFORCE THIS AGREEMENT OR ANY OTHER ACTION OR PROCEEDING
WHICH
MAY ARISE
OUT OF
OR IN ANY WAY BE CONNECTED WITH THIS AGREEMENT OR ANY OF THE OTHER
DOCUMENTS.
(f) Parties
to Pay Own Expenses.
Each of
the parties to this Agreement shall be responsible and liable for its own
expenses incurred in connection with the preparation of this Agreement, the
consummation of the transactions contemplated by this Agreement and related
expenses.
(g) Successors.
This
Agreement shall be binding upon the parties and their respective heirs,
executors, administrators, legal representatives, successors and assigns;
provided, however, that neither party may assign this Agreement or any of
its
rights under this Agreement without the prior written consent of the other
party.
(h) Further
Assurances.
Each
party to this Agreement agrees, without cost or expense to any other party,
to
deliver or cause to be delivered such other documents and instruments as
may be
reasonably requested by any other party to this Agreement in order to carry
out
more fully the provisions of, and to consummate the transaction contemplated
by,
this Agreement.
(i) Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original but all of which together shall constitute
one
and the same instrument.
-
5 -
(j) No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen
by the
parties with the advice of counsel to express their mutual intent, and no
rules
of strict construction will be applied against any party.
(k) Headings.
The
headings in the Sections of this Agreement are inserted for convenience only
and
shall not constitute a part of this Agreement.
[Remainder
of this page intentionally left blank.]
-
6 -
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.
|
SRKP
4, INC.
By:
/s/ Xxxxxxx
Xxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxx
Title:
President
|
|
|
SELLERS
/s/
Xxxxxx
Xxxxxxxxxxxx
Xxxxxx
Xxxxxxxxxxxx
|
|
|
/s/
Xxxxxxx
Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx
|
|
|
/s/
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
|
|
|
/s/
Xxxxxxx X.
Xxxxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxxxx
|
|
|
/s/
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
|
-
7 -
