Share And Warrant Cancellation Agreement

Share and Warrant Cancellation Agreement


 
THIS SHARE AND WARRANT CANCELLATION AGREEMENT (this “Agreement”) is made and entered into as of this 17th day of October 2008 by and between SRKP 17, Inc., a Delaware corporation (“SRKP 17”) and the stockholders of SRKP 17, as set forth on Schedule I attached hereto (such stockholders 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 Exchange Agreement (as hereinafter defined).
 
RECITALS
 
WHEREAS, SRKP 17, Podium Technology Limited, a company organized under the laws of the British Virgin Islands (“Podium”), and the sole shareholder and the warrantholders of Podium entered into a Share and Warrant Exchange Agreement, dated as of September 22, 2008 (the “Exchange Agreement”), a copy of which is attached hereto as Exhibit A;

WHEREAS, after the Exchange, SRKP 17 agreed to offer Mr. Zhao Zifeng a thirty (30) day right to purchase up to 6,500,000 shares of our common stock at a per share purchase price of $0.415 (the “Purchase Right”);

WHEREAS, SRKP 17 agreed to enter into an agreement with the Stockholders to cancel 0.91867 shares of common stock and warrants to purchase 0.98943 shares of common stock held by each of them for one (1) share of common stock purchased by Mr. Zhao pursuant to the Purchase Right;

WHEREAS, assuming the exercise in full of the Purchase Right, the Stockholders shall cancel (i) an aggregate of 5,971,390 shares of SRKP 17 common stock held by such Stockholders (the “Shares”), as such Shares are more particularly set forth on Schedule I attached hereto, and (ii) an aggregate of 6,431,299 warrants to purchase shares of SRKP 17 common stock held by such Stockholders (the “Warrants”), as such Warrants are more particularly set forth on Schedule II attached hereto; and

WHEREAS, the Stockholders acknowledge that they would benefit from the completion of the transactions contemplated by the Exchange Agreement.

NOW, THEREFORE, for and in consideration of the execution and delivery of the Exchange Agreement, and the payment of good and valuable consideration pursuant to the Exchange Agreement, the receipt and sufficiency of which is hereby acknowledged, SRKP 17 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 Exchange Agreement, the Exchange Agreement shall control.
 
 
1

 
 
1.2 Cancellation of Shares and Warrants. Upon the exercise of the Purchase Right, for each one (1) share of common stock purchased by Mr. Zhao, 0.91867 of the Shares and 0.98943 of the Warrants shall be deemed automatically cancelled on a pro rata basis with respect to the Shares and Warrants held by each Stockholder. 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 17 reasonably determines necessary to effect the cancellation of the 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 the exercise of the Purchase Right, the Stockholders shall have rights to cash or stock dividends with respect to the Shares and the Warrants, if any, and have rights to vote their respective 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 17 common stock that becomes effective prior to the exercise of the Purchase Right, the additional shares or warrants issued with respect to the Shares or the Warrants 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 17:
 
SRKP 17, 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.
 
 
2

 
 
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]

 
3

 
 
IN WITNESS WHEREOF, the parties have executed this Share and Warrant Cancellation Agreement as of the day and year first above written.
 
 
STOCKHOLDERS
       
By:
/s/ Richard Rappaport
 
/s/ Debbie Schwartzberg
Name:
Richard Rappaport
 
Debbie Schwartzberg
Title:
President
   
       
     
/s/ Thomas Poletti
     
Thomas Poletti
       
     
/s/ Richard Rappaport
     
WestPark Financial Services, LLC
     
By: Richard Rappaport
     
Its: President
       
     
/s/ Richard Rappaport
     
Richard Rappaport
       
     
/s/ Anthony Pintsopoulos
     
Anthony Pintsopoulos
       
     
/s/ Richard Rappaport
     
Amanda Rappaport Trust
     
By: Richard Rappaport
     
Its: Trustee
       
     
/s/ Richard Rappaport
     
Kailey Rappaport Trust
     
By: Richard Rappaport
     
Its: Trustee
       
     
/s/ Kevin DePrimio
     
Kevin DePrimio
       
     
/s/ Jason Stern
     
Jason Stern
 
 
4

 
 
     
/s/ Debbie Schwartzberg
     
The Julie Schwartzberg Trust dated 2/9/2000
     
By: Debbie Schwartzberg
     
Its: Trustee
       
     
/s/ Debbie Schwartzberg
     
The David N. Sterling Trust dated 2/3/2000
     
By: Debbie Schwartzberg
     
Its: Trustee

 
5

 

Schedule I

Stockholders of SRKP 17, Inc.

   
Stockholder
 
Shares to be
cancelled per the
terms of this
Agreement
 
Pre-Purchase Right
Shares
 
Post-Purchase Right
Shares
(assuming full exercise
of the Purchase Right)
 
1.
   
Debbie Schwartzberg
785 5th Avenue , Apt 10C
New York, NY 10022
   
841,468
   
1,000,000
   
158,532
 
2.
   
The Julie Schwartzberg Trust
785 5th Avenue , Apt 10C
New York, NY 10022
   
84,147
   
100,000
   
15,853
 
3.
   
The David N. Sterling Trust
785 5th Avenue , Apt 10C
New York, NY 10022
   
84,147
   
100,000
   
15,853
 
4.
   
Thomas Poletti
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
208,999
   
248,374
   
39,375
 
5.
   
WestPark Financial Services, LLC
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
2,334,216
   
2,773,979
   
439,763
 
6.
   
Richard Rappaport
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
955,420
   
1,135,420
   
180,000
 
7.
   
Anthony Pintsopoulos
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
597,139
   
709,639
   
112,500
 
8.
   
Amanda Rappaport Trust
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
268,713
   
319,338
   
50,625
 
9.
   
Kailey Rappaport Trust
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
268,713
   
319,338
   
50,625
 
10.
   
Kevin DePrimio
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
208,999
   
248,374
   
39,375
 
11.
   
Jason Stern
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
119,429
   
141,928
   
22,499
 
           
5,971,390
   
7,096,390
   
1,125,000
 

 
6

 

Schedule II

Warrantholders of SRKP 17, Inc.

   
Warrantholder
 
Warrants to be
cancelled per the
terms of this
Agreement
 
Pre-Purchase Right
Warrants
 
Post-Purchase Right
Warrants
(assuming full exercise
of the Purchase Right)
 
1.
   
Debbie Schwartzberg
785 5th Avenue , Apt 10C
New York, NY 10022
   
906,277
   
1,000,000
   
93,723
 
2.
   
The Julie Schwartzberg Trust
785 5th Avenue , Apt 10C
New York, NY 10022
   
90,628
   
100,000
   
9,372
 
3.
   
The David N. Sterling Trust
785 5th Avenue , Apt 10C
New York, NY 10022
   
90,628
   
100,000
   
9,372
 
4.
   
Thomas Poletti
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
225,096
   
248,374
   
23,278
 
5.
   
WestPark Financial Services, LLC
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
2,513,995
   
2,773,979
   
259,984
 
6.
   
Richard Rappaport
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
1,029,005
   
1,135,420
   
106,415
 
7.
   
Anthony Pintsopoulos
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
643,130
   
709,639
   
66,509
 
8.
   
Amanda Rappaport Trust
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
289,409
   
319,338
   
29,929
 
9.
   
Kailey Rappaport Trust
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
289,409
   
319,338
   
29,929
 
10.
   
Kevin DePrimio
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
225,096
   
248,374
   
23,278
 
11.
   
Jason Stern
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
   
128,626
   
141,928
   
13,302
 
           
6,431,299
   
7,096,390
   
665,091
 

 
7

 

Exhibit A

Share and Warrant Exchange Agreement

 
8