Attached files
| file | filename |
|---|---|
| EX-3.3 - SRKP 25 INC | v183689_ex3-3.htm |
| EX-2.1 - SRKP 25 INC | v183689_ex2-1.htm |
| EX-10.4 - SRKP 25 INC | v183689_ex10-4.htm |
| EX-21.1 - SRKP 25 INC | v183689_ex21-1.htm |
| EX-10.8 - SRKP 25 INC | v183689_ex10-8.htm |
| EX-10.5 - SRKP 25 INC | v183689_ex10-5.htm |
| EX-10.1 - SRKP 25 INC | v183689_ex10-1.htm |
| EX-10.6 - SRKP 25 INC | v183689_ex10-6.htm |
| EX-10.7 - SRKP 25 INC | v183689_ex10-7.htm |
| EX-10.3 - SRKP 25 INC | v183689_ex10-3.htm |
| EX-16.1 - SRKP 25 INC | v183689_ex16-1.htm |
| 8-K - SRKP 25 INC | v183689_8k.htm |
AMENDED AND
RESTATED
SHARE AND WARRANT
CANCELLATION AGREEMENT
THIS
AMENDED AND RESTATED SHARE AND WARRANT CANCELLATION AGREEMENT (this “Agreement”) is made
and entered into as of this 23rd day of April, 2010, by and between SRKP 25,
Inc., a Delaware corporation (“SRKP 25”), and the
stockholders of SRKP 25, as set forth on Schedule I attached
hereto (such stockholders are collectively referred to herein as the “Stockholders”). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Amended and Restated Exchange Agreement (as hereinafter
defined).
RECITALS
WHEREAS,
SRKP 25 entered into a Share Exchange Agreement effective March 31, 2010 (the
“Original Exchange
Agreement”) with CD Media (Holding) Co., Limited, a company organized in
the British Virgin Islands (“CD Media BVI”),
Huizhou CD Media Co., Ltd., a company organized in the People’s Republic of
China and a wholly-owned subsidiary of CD Media, Beijing CD Media Advertisement
Co., Ltd., a company organized in the People’s Republic of China, and each of
the shareholders of CD Media BVI;
WHEREAS,
as contemplated by the terms of the Original Exchange Agreement, the parties
previously executed a Share and Warrant Cancellation Agreement dated as of March
31, 2010 (the “Original Agreement”),
pursuant to which the Stockholders agreed to cancel shares of SRKP 25 common
stock and warrants to purchase shares of SRKP 25 common stock held by them in
connection with the transaction contemplated by the Original Exchange
Agreement;
WHEREAS,
after further negotiations between the parties to the Original Exchange
Agreement, the parties to the Original Exchange Agreement entered into an
Amended and Restated Share Exchange Agreement dated as of April 23, 2010 (the
“Amended and Restated
Exchange Agreement”), a copy of which is attached hereto as Exhibit
A;
WHEREAS,
pursuant to the terms of the Amended and Restated Exchange Agreement, and as a
condition to the completion of the transactions contemplated by the Amended and
Restated Exchange Agreement, SRKP 25 agreed to enter into an agreement with the
Stockholders to cancel (i) shares of SRKP 25 common stock held by such
Stockholders (the “Shares”), the maximum
number of such Shares to be cancelled as more particularly set forth on Schedule I attached
hereto, and (ii) warrants to purchase shares of SRKP 25 common stock held by
such Stockholders (the “Warrants”), the
maximum number of such Warrants more particularly set forth on Schedule II attached
hereto;
WHEREAS,
in conjunction with and in consideration of the Amended and Restated Exchange
Agreement, the parties desire to amend and restate the terms and conditions of
the Original Agreement as set forth in this Agreement;
WHEREAS,
it is acknowledged and understood that the Company is seeking to sell up to
$5.35 million of its capital stock in a private placement (the “Placement”), which
Placement may be effected in one or more closings (each, a “Closing” and the
first of said Closings to be the “Initial Closing”);
and
WHEREAS,
the Stockholders acknowledge that they would benefit from the completion of the
transactions contemplated by the Amended and Restated Exchange
Agreement.
NOW,
THEREFORE, for and in consideration of the execution and delivery of the Amended
and Restated Exchange Agreement, and the payment of good and valuable
consideration pursuant to the Amended and Restated Exchange Agreement, the
receipt and sufficiency of which is hereby acknowledged, SRKP 25 and the
Stockholders, each intending to be legally bound by this Agreement, hereby agree
as follows:
AGREEMENT
1. DUTIES
1.1 Rights and Obligations of
the Parties. The parties shall be entitled to such rights and
shall perform such duties as set forth herein. In the event that the
terms of this Agreement conflict in any way with the provisions of the Amended
and Restated Exchange Agreement, the Amended and Restated Exchange Agreement
shall control.
1.2 Cancellation of Shares and
Warrants.
(a) Mechanism. On
each date of a Closing, a number of Shares and Warrants held by each Stockholder
shall be deemed automatically cancelled as determined further to the
following:
|
|
(i)
It is understood and agreed that further to the Amended and Restated
Exchange Agreement, CD Media BVI must have at least US $8,500,000 (Eight
Million Five Hundred Thousand) in net income for the most recently
completed fiscal period (the "Fiscal
Period"), such results to have been verified by CD Media BVI's
independent auditors (the "Auditors"),
such Auditors verifying to each of SRKP 25 and CD Media BVI that it has
reviewed such results consistent with the requirements of Rule 10-01(d) of
Regulation S-X (or any succeeding provision) (the "Review”). CD
Media BVI has previously represented to SRKP 25 that it projects net
income for the Fiscal Period to be US $8,500,000 (Eight Million Five
Hundred Thousand) (the “Projection”);
|
|
|
(ii)
The number of Shares and Warrants held by each Stockholder to be cancelled
on each Closing Date shall be the Maximum Cancelled Shares and the Maximum
Cancelled Warrants held by each Stockholder as described and as those
respective terms are defined in Schedules I and
II hereof, respectively, less any Shares and Warrants,
respectively, previously held by each Stockholder and cancelled further to
the operation of this Section 1.2, each then adjusted by multiplying each
of said numbers by a fraction, the numerator of which shall be the gross
proceeds of shares of capital stock of the Company sold in the Placement
for such Closing and the denominator of which shall be 5,350,000 (each
resulting sum shall be known as a "Product"). Each
Product will then be further adjusted as referenced in subparagraph (iii)
below;
|
|
|
(iii)
Each Product shall then be multiplied by a fraction (the "Fraction"), the
denominator of which is the Projection and the numerator of which is the
actual net income of CD Media BVI for the Fiscal Period as determined and
verified by the Auditors further to the Review, provided however that in
no event shall the Fraction be greater than 1. It is understood and agreed
that if the closing of the Share Exchange extends beyond the nine month
period ending September 30, 2010 (the "Next Fiscal
Period"), and if SRKP 25 has not opted to terminate the
Amended and Restated Exchange Agreement further to its terms, CD Media BVI
shall provide SRKP 25 an updated projection of net income for the
Next Fiscal Period (the "Updated
Projection") and if after receipt of the Updated Projection
SRKP 25 does not then terminate the Amended and Restated Exchange
Agreement further to its terms, the Fraction shall be adjusted so that the
denominator is then the Updated Projection and the numerator is the actual
net income of CD Media BVI for the Updated Fiscal Period as determined and
verified by the Auditors further to the Review, provided again, however,
that in no event shall the Fraction be greater than 1;
and
|
|
|
(iv)
notwithstanding the referenced calculations, in no event shall the
aggregate number of Shares and Warrants held by each Stockholder and to be
cancelled further to this Agreement exceed the Maximum Cancelled Shares
and the Maximum Cancelled Warrants attributable to such Stockholder
further to Schedules I and
II herein.
|
(b) Execution of Further
Documentation. The Stockholders agree to execute any and all
documents, including, but not limited to, stock powers for the stock
certificates representing the Shares, as SRKP 25 reasonably determines necessary
to effect the cancellation of Shares and the Warrants pursuant to the terms of
this Agreement.
2. DIVIDENDS; VOTING RIGHTS;
STOCK SPLITS
2.1 Cash Dividends; Voting
Rights. Prior to each Closing of the Amended and Restated
Exchange Agreement, the Stockholders shall have rights to cash or stock
dividends with respect to any uncancelled Shares and/or Warrants, if any, and
have rights to vote their respective uncancelled Shares, if any such matter
requiring stockholder approval shall arise.
2.2 Stock Splits; Stock
Dividends. In the event of any stock split or other similar
transaction with respect to SRKP 25 common stock that becomes effective prior to
any Closing of the Amended and Restated Exchange Agreement, the additional
shares or warrants issued with respect to the Shares or the Warrants to be
cancelled shall be similarly cancelled.
3. MISCELLANEOUS
3.1 Transferability. None
of the rights and obligations of the Stockholders hereunder shall be
transferable.
3.2 Notices. Any
notices or other communications required or permitted under this Agreement shall
be in writing and shall be sufficiently given if sent by (i) registered or
certified mail, postage prepaid, addressed as follows, (ii) facsimile to the
facsimile numbers identified below or (iii) overnight courier (such as UPS or
FedEx), addressed as follows:
If to
SRKP 25:
SRKP 25,
Inc.
4737
North Ocean Drive, Suite 207
Lauderdale
by the Sea, FL 33308
Attention:
Richard Rappaport
Telecopy
No.: (310) 843-9304
If to the
Stockholders:
to the
address set forth next to the name of each of the Stockholders in Schedule
I
or such
other person or address as shall be furnished in writing by any of the parties
and any such notice or communication shall be deemed to have been given as of
the date so mailed.
3.3 Construction. The
validity, enforcement and construction of this Agreement shall be governed by
the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
3.4 Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legatees, assigns and
transferees, as the case may be.
3.5 Severability. If
any provision or section of this Agreement is determined to be void or otherwise
unenforceable, it shall not affect the validity or enforceability of any other
provisions of this Agreement which shall remain enforceable in accordance with
their terms.
3.6 Interpretation. The
headings and subheadings contained in this Agreement are for reference only and
for the benefit of the parties and shall not be considered in the interpretation
or construction of this Agreement. This Agreement shall be construed
and interpreted without regard to any rule or presumption requiring that it be
construed or interpreted against the party causing it to be
drafted.
3.7 Execution in
Counterparts. This Agreement may be executed in any number of
counterparts (including facsimile counterparts), each of which shall be deemed
to be an original, but all of which together shall constitute one and the same
instrument.
3.8 Amendments. This
Agreement may be amended from time to time but only by written agreement signed
by all of the parties hereto.
3.9 Entire
Agreement. This Agreement
constitutes the entire understanding and agreement of the parties relating to
the subject matter hereof and supersedes any and all prior understandings,
agreements, negotiations and discussions, both written and oral, between the
parties hereto with respect to the subject matter hereof.
[Signatures
appear on following page]
IN WITNESS WHEREOF, the parties have
executed this Amended and Restated Share and Warrant Cancellation Agreement as
of the day and year first above written.
|
SRKP
25, INC.
|
|||
|
By:
|
/s/ Richard Rappaport
|
||
|
Name:
Richard Rappaport
|
|||
|
Title:
President
|
|||
|
STOCKHOLDERS
|
|||
|
/s/ Debbie Schwartzberg
|
/s/ Anthony Pintsopoulos
|
||
|
Debbie
Schwartzberg
|
Anthony
Pintsopoulos
|
||
|
/s/ Debbie Schwartzberg
|
/s/ Richard Rappaport
|
||
|
The
Julie Schwartzberg Trust dated 2/9/2000
|
Amanda
Rappaport Trust
|
||
|
By: Debbie
Schwartzberg
|
By: Richard
Rappaport
|
||
|
Its: Trustee
|
Its:
Trustee
|
||
|
/s/ Debbie Schwartzberg
|
/s/ Richard Rappaport
|
||
|
The
David N. Sterling Trust dated 2/3/2000
|
Kailey
Rappaport Trust
|
||
|
By: Debbie
Schwartzberg
|
By: Richard
Rappaport
|
||
|
Its: Trustee
|
Its:
Trustee
|
||
|
/s/ Janine Frisco
|
/s/ Kevin DePrimio
|
||
|
Janine
Frisco
|
Kevin
DePrimio
|
||
|
/s/ Richard Rappaport
|
/s/ Jason Stern
|
||
|
WestPark
Capital Financial Services, LLC
|
Jason
Stern
|
||
|
By: Richard
Rappaport
|
|||
|
Its: Chief
Executive Officer
|
|||
|
/s/ Richard Rappaport
|
/s/ Robert Schultz
|
||
|
Richard
Rappaport
|
|
Robert
Schultz
|
|
Schedule
I
Stockholders
of SRKP 25, Inc.
|
Stockholder
|
Maximum number of
Shares to be cancelled
pursuant to the terms
of this Agreement
(“Maximum
Cancelled Shares”)
|
Shares Held by
Stockholder prior
to the date of the
Initial Closing
|
Post-Cancellation
Shares held by
Stockholder,
assuming
Maximum
Cancelled Shares
|
||||||||||
|
1.
|
WestPark
Financial Services, LLC
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
1,355,922 | 2,773,979 | 1,418,057 | |||||||||
|
2.
|
Richard
Rappaport
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
787,459 | 1,099,938 | 312,479 | |||||||||
|
3.
|
Amanda
Rappaport Trust
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
228,618 | 319,338 | 90,720 | |||||||||
|
4.
|
Kailey
Rappaport Trust
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
228,618 | 319,338 | 90,720 | |||||||||
|
5.
|
Debbie
Schwartzberg
785
5th Avenue , Apt 10C
New
York, NY 10022
|
690,510 | 964,518 | 274,008 | |||||||||
|
6.
|
The
Julie Schwartzberg Trust dated 2/9/2000
785
5th Avenue , Apt 10C
New
York, NY 10022
|
71,592 | 100,000 | 28,408 | |||||||||
|
7.
|
The
David N. Sterling Trust dated 2/3/2000
785
5th Avenue , Apt 10C
New
York, NY 10022
|
71,592 | 100,000 | 28,408 | |||||||||
|
8.
|
Anthony
Pintsopoulos
c/o
SRKP 25, Inc.
4737
North Ocean Drive, Suite 207
Lauderdale
by the Sea, FL 33308
|
508,039 | 709,639 | 201,600 | |||||||||
|
9.
|
Janine
Frisco
200
Oceangate, Suite 1500
Long
Beach, CA 90802-4302
|
177,814 | 248,374 | 70,560 | |||||||||
|
10.
|
Kevin
DePrimio
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
177,814 | 248,374 | 70,560 | |||||||||
|
11.
|
Jason
Stern
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
101,608 | 141,928 | 40,320 | |||||||||
|
12.
|
Robert
Schultz
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
50,804 | 70,964 | 20,160 | |||||||||
| 4,450,390 | 7,096,390 | 2,646,000 | |||||||||||
Schedule
II
Warrantholders
of SRKP 25, Inc.
|
Warrantholder
|
Maximum number of
Warrants to be cancelled
pursuant to the terms of
this Agreement
(“Maximum Cancelled
Warrants”)
|
Warrants Held by
Stockholder prior to
the date of the Initial
Closing
|
Post-Cancellation
Warrants held by
Stockholder,
assuming Maximum
Cancelled Warrants
|
||||||||||
|
1.
|
WestPark
Financial Services, LLC
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
1,835,425 | 2,773,979 | 938,554 | |||||||||
|
2.
|
Richard
Rappaport
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
977,592 | 1,099,938 | 122,346 | |||||||||
|
3.
|
Amanda
Rappaport Trust
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
283,818 | 319,338 | 35,520 | |||||||||
|
4.
|
Kailey
Rappaport Trust
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
283,818 | 319,338 | 35,520 | |||||||||
|
5.
|
Debbie
Schwartzberg
785
5th Avenue , Apt 10C
New
York, NY 10022
|
857,235 | 964,518 | 107,283 | |||||||||
|
6.
|
The
Julie Schwartzberg Trust dated 2/9/2000
785
5th Avenue , Apt 10C
New
York, NY 10022
|
88,877 | 100,000 | 11,123 | |||||||||
|
7.
|
The
David N. Sterling Trust dated 2/3/2000
785
5th Avenue , Apt 10C
New
York, NY 10022
|
88,877 | 100,000 | 11,123 | |||||||||
|
8.
|
Anthony
Pintsopoulos
c/o
SRKP 25, Inc.
4737
North Ocean Drive, Suite 207
Lauderdale
by the Sea, FL 33308
|
630,706 | 709,639 | 78,933 | |||||||||
|
9.
|
Janine
Frisco
200
Oceangate, Suite 1500
Long
Beach, CA 90802-4302
|
220,748 | 248,374 | 27,626 | |||||||||
|
10.
|
Kevin
DePrimio
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
220,748 | 248,374 | 27,626 | |||||||||
|
11.
|
Jason
Stern
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
126,142 | 141,928 | 15,786 | |||||||||
|
12.
|
Robert
Schultz
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
|
63,071 | 70,964 | 7,893 | |||||||||
| 5,677,057 | 7,096,390 | 1,419,333 | |||||||||||
Exhibit
A
Amended
and Restated Share Exchange Agreement