Published on July 7, 2006
EXHIBIT
2.1
SHARE
EXCHANGE AGREEMENT
THIS
SHARE EXCHANGE AGREEMENT, dated as of the 8th day of June, 2006 (the
“Agreement”), by and among SRKP 7, Inc., a Delaware corporation (the
“Company”); John S. Kovach (“Seller”); and Lixte Biotechnology, Inc., a Delaware
corporation (“Lixte”). The Company, Seller and Lixte are collectively referred
to herein as the “Parties”.
WITNESSETH:
WHEREAS,
Seller owns all of the shares of the capital stock of Lixte (the “Lixte
Shares”).
WHEREAS,
the Company desires to acquire from Seller, and Seller desires to sell to the
Company, the Lixte Shares in exchange (the “Exchange”) for the issuance by the
Company to Sellers and/or Seller’s designee, of 19,021,786 shares of the
Company’s Common Stock (the “Shares”) representing 82.60% of the Company’s
capital stock on a fully diluted basis after taking into account the
transactions contemplated herein, including the Exchange.
WHEREAS,
after giving effect to the Exchange, and the stock dividend referred to in
Section 2.3 but without giving effect to the Private Placement referred to
in Section 7.2, there will be approximately 23,027,341 shares of Company
Common Stock issued and outstanding.
NOW,
THEREFORE, in consideration of the premises and of the mutual representations,
warranties and agreements set forth herein, the parties hereto agree as
follows:
THE
EXCHANGE
The
Exchange.
Subject
to the terms and conditions of this Agreement, on the Closing Date (as
hereinafter defined):
The
Company shall issue and deliver to Seller and/or his designee(s) 19,021,786
Shares, and
Seller
shall deliver to the Company duly executed transfer documents representing
the
Lixte Shares.
Time
and Place of Closing.
The
closing of the transactions contemplated hereby (the “Closing”) shall take place
at the offices of Troy & Gould on or before June 30, 2006 (the “Closing
Date”) at 10:00 a.m., or at such place and time as mutually agreed upon by
the parties hereto.
Effective
Time.
The
Exchange shall become effective (the “Effective Time”) at such time as all of
the conditions to set forth in Article VII hereof have been satisfied or
waived by the Parties hereto.
REPRESENTATIONS
AND WARRANTIES OF THE
COMPANY
The
Company severally represents and warrants to Lixte and Seller that now and/or
as
of the Closing:
Due
Organization and Qualification; Due Authorization.
The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with full corporate power
and
authority to own, lease and operate its respective business and properties
and
to carry on its business in the places and in the manner as presently conducted
or proposed to be conducted. The Company is in good standing as a foreign
corporation in each jurisdiction in which the properties owned, leased or
operated, or the business conducted, by it requires such qualification except
for any such failure, which when taken together with all other failures, is
not
likely to have a material adverse effect on the business of the
Company.
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EXHIBIT
2.1
The
Company does not own, directly or indirectly, any capital stock, equity or
interest in any corporation, firm, partnership, joint venture or other
entity.
The
Company has all requisite corporate power and authority to execute and deliver
this Agreement, and to consummate the transactions contemplated hereby. The
Company has taken all corporate action necessary for the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby,
and this Agreement constitutes the valid and binding obligation of the Company
and the Shareholder, enforceable against the Company and the Shareholder in
accordance with its terms, except as may be affected by bankruptcy, insolvency,
moratoria or other similar laws affecting the enforcement of creditors’ rights
generally and subject to the qualification that the availability of equitable
remedies is subject to the discretion of the court before which any proceeding
therefore may be brought.
No
Conflicts or Defaults.
The
execution and delivery of this Agreement by the Company and the consummation
of
the transactions contemplated hereby do not and shall not (a) contravene
the Articles of Incorporation or By-laws of the Company, or (b) with or
without the giving of notice or the passage of time (i) violate, conflict
with, or result in a breach of, or a default or loss of rights under, any
material covenant, agreement, mortgage, indenture, lease, instrument, permit
or
license to which the Company is a party or by which the Company is bound, or
any
judgment, order or decree, or any law, rule or regulation to which the Company
is subject, (ii) result in the creation of, or give any party the right to
create, any lien, charge, encumbrance or any other right or adverse interest
(“Liens”) upon any of the assets of the Company, (iii) terminate or give
any party the right to terminate, amend, abandon or refuse to perform, any
material agreement, arrangement or commitment to which the Company is a party
or
by which the Company’s assets are bound, or (iv) accelerate or modify, or
give any party the right to accelerate or modify, the time within which, or
the
terms under which, the Company is to perform any duties or obligations or
receive any rights or benefits under any material agreement, arrangement or
commitment to which it is a party.
Capitalization.
The
authorized capital stock of the Company immediately prior to giving effect
to
the transactions contemplated hereby consists of 100,000,000 shares of Company
Common Stock $.0001 par value and 100,000,000 shares of Preferred Stock $.0001
par value. As of the date hereof, there are 3,605,000 shares of Company Common
Stock issued and outstanding (after giving effect to a .111 to 1 stock dividend
to occur prior to Closing) and no shares of Preferred Stock outstanding. All
of
the outstanding shares of Company Common Stock are, and the Shares when issued
in accordance with the terms hereof, will be duly authorized, validly issued,
fully paid and nonassessable, and have not been or, with respect to the Shares,
will not be issued in violation of any preemptive right of stockholders. There
is no outstanding voting trust agreement or other contract, agreement,
arrangement, option, warrant, call, commitment or other right of any character
obligating or entitling the Company to issue, sell, redeem or repurchase any
of
its securities, and there is no outstanding security of any kind convertible
into or exchangeable for Company Common Stock. The Company has not granted
registration rights to any person.
Financial
Statements.
Schedule 2.4 includes copies of the unaudited balance sheets of the Company
at March 31, 2006, and the related statements of operations and cash flows
for the three months ended March 31, 2006 and for period between May 24,
2005 and December 31, 2005, including the notes thereto (the “Financial
Statements”). The Financial Statements, together with the notes thereto, have
been prepared in accordance with U.S. generally accepted accounting principles
applied on a basis consistent throughout all periods presented. The Financial
Statements present fairly the financial position of the Company as of the date
and for the period indicated. The books of account and other financial records
of the Company have been maintained in accordance with good business
practices.
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EXHIBIT
2.1
No
Assets or Liabilities.
Except
as set forth on the Financial Statements, the Company does not have any
(a) assets of any kind or (b) liabilities or obligations, whether
secured or unsecured, accrued, determined, absolute or contingent, asserted
or
unasserted or otherwise.
Taxes.
The
Company has filed all tax returns and reports which were required to be filed
on
or prior to the date hereof in respect of all income, withholding, franchise,
payroll, excise, property, sales, use, value-added or other taxes or levies,
imposts, duties, license and registration fees, charges, assessments or
withholdings of any nature whatsoever (together, “Taxes”), and has paid all
Taxes (and any related penalties, fines and interest) which have become due
pursuant to such returns or reports or pursuant to any assessment which has
become payable, or, to the extent its liability for any Taxes (and any related
penalties, fines and interest) has not been fully discharged, the same have
been
properly reflected as a liability on the books and records of the Company and
adequate reserves therefore have been established.
Indebtedness;
Contracts; No Defaults.
There
are no agreements, indentures, mortgages, guarantees, notes, commitments,
accommodations, letters of credit or other arrangements or understandings,
whether written or oral, to which the Company is a party.
Real
Property.
The
Company does not own or lease any real property.
Compliance
with Law.
The
Company is conducting its business in material compliance with all applicable
laws, ordinances, rules, regulations, court or administrative order, decree
or
process (“Applicable Laws”). The Company has not received any notice of
violation or claimed violation of any Applicable Law.
Litigation.
There
is
no claim, dispute, action, suit, proceeding or investigation pending or, to
the
knowledge of the Company and the Shareholder, threatened, against the Company,
or challenging the validity or propriety of the transactions contemplated by
this Agreement, at law or in equity or admiralty or before any federal, state,
local, foreign or other governmental authority, board, agency, commission or
instrumentality, nor to the knowledge of the Company and the Shareholder, has
any such claim, dispute, action, suit, proceeding or investigation been pending
or threatened, during the twelve month period preceding the date
hereof;
There
is
no outstanding judgment, order, writ, ruling, injunction, stipulation or decree
of any court, arbitrator or federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, against or materially
affecting the business of the Company; and
The
Company has not received any written or verbal inquiry from any federal, state,
local, foreign or other governmental authority, board, agency, commission or
instrumentality concerning the possible violation of any Applicable
Law.
Trading.
The
Company Common Stock is currently not trading on any publicly traded
market.
Securities
Law Compliance.
The
Company has complied with all of the requirements of the Securities Exchange
Act
of 1934, as amended (the “Exchange Act”) and the Securities Act of 1933, as
amended (the “Securities Act”), and has complied with all applicable blue sky
laws.
Finder’s
Fees.
The
Company is not obligated to pay any person any finder’s or broker’s fees in
connection with the transactions contemplated herein except that Lixte is
obligated to pay to Westpark Capital, Inc. a cash fee of $45,000 upon the
Closing.
REPRESENTATIONS
AND WARRANTIES OF LIXTE
AND
SELLER
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EXHIBIT
2.1
Lixte
and
Seller severally represent and warrant to the Company that now and/or as of
the
Closing:
Due
Organization and Qualification; Subsidiaries; Due Authorization.
Lixte
is
a company duly organized, validly existing and in good standing under the laws
of the state of Delaware, with full corporate power and authority to own, lease
and operate its business and properties and to carry on its business in the
places and in the manner as presently conducted or proposed to be conducted.
Lixte is in good standing as a foreign corporation in each jurisdiction in
which
the properties owned, leased or operated, or the business conducted, by it
requires such qualification except for any such failure, which when taken
together with all other failures, is not likely to have a material adverse
effect on the business of Lixte.
Lixte
does not own, directly or indirectly, any capital stock, equity or interest
in
any corporation, firm, partnership, joint venture or other entity.
Lixte
has
all requisite power and authority to execute and deliver this Agreement, and
to
consummate the transactions contemplated hereby and thereby. Lixte has taken
all
corporate action necessary for the execution and delivery of this Agreement
and
the consummation of the transactions contemplated hereby, and this Agreement
constitutes the valid and binding obligation of Lixte, enforceable against
Lixte
in accordance with its terms, except as may be affected by bankruptcy,
insolvency, moratoria or other similar laws affecting the enforcement of
creditors’ rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
No
Conflicts or Defaults.
The
execution and delivery of this Agreement by Lixte and the consummation of the
transactions contemplated hereby do not and shall not (a) contravene the
governing documents of Lixte, or (b) with or without the giving of notice
or the passage of time, (i) violate, conflict with, or result in a breach
of, or a default or loss of rights under, any material covenant, agreement,
mortgage, indenture, lease, instrument, permit or license to which Lixte is
a
party or by which Lixte or any of their respective assets are bound, or any
judgment, order or decree, or any law, rule or regulation to which their assets
are subject, (ii) result in the creation of, or give any party the right to
create, any lien upon any of the assets of Lixte, (iii) terminate or give
any party the right to terminate, amend, abandon or refuse to perform any
material agreement, arrangement or commitment to which Lixte is a party or
by
which Lixte or any of its assets are bound, or (iv) accelerate or modify,
or give any party the right to accelerate or modify, the time within which,
or
the terms under which Lixte is to perform any duties or obligations or receive
any rights or benefits under any material agreement, arrangement or commitment
to which it is a party.
Capitalization.
The
authorized capital stock of Lixte immediately prior to giving effect to the
transactions contemplated hereby consists of 1,500 shares of Common Stock which
as of the date hereof there were 1,500 shares issued and outstanding. All of
the
outstanding shares of Lixte are duly authorized, validly issued, fully paid
and
nonassessable, and have not been or, with respect to Lixte Shares, will not
be
transferred in violation of any rights of third parties. The Lixte Shares are
not subject to any preemptive or subscription right, any voting trust agreement
or other contract, agreement, arrangement, option, warrant, call, commitment
or
other right of any character obligating or entitling Lixte to issue, sell,
redeem or repurchase any of its securities, and there is no outstanding security
of any kind convertible into or exchangeable for the capital stock of Lixte.
All
of the Lixte Shares are owned of record and beneficially by Seller free and
clear of any liens, claims, encumbrances, or restrictions of any
kind.
Taxes.
Lixte
has filed all tax returns and reports which were required to be filed on or
prior to the date hereof in respect of all taxes, and has paid all Taxes (and
any related penalties, fines and interest) which have become due pursuant to
such returns or reports or pursuant to any assessment which has become payable,
or, to the extent its liability for any Taxes (and any related penalties, fines
and interest) has not been fully discharged, the same have been properly
reflected as a liability on the books and records of Lixte and adequate reserves
therefore have been established.
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2.1
Compliance
with Law.
Lixte
is conducting its business in material compliance with all applicable law,
ordinance, rule, regulation, court or administrative order, decree or process.
Lixte has not received any notice of violation or claimed violation of any
such
law, ordinance, rule, regulation, order, decree, process or
requirement.
Litigation.
There
is
no claim, dispute, action, suit, proceeding or investigation pending or
threatened, against or affecting Lixte or challenging the validity or propriety
of the transactions contemplated by this Agreement, at law or in equity or
admiralty or before any federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, has any such claim,
dispute, action, suit, proceeding or investigation been pending or threatened,
during the 12 month period preceding the date hereof;
There
is
no outstanding judgment, order, writ, ruling, injunction, stipulation or decree
of any court, arbitrator or federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, against or materially
affecting Lixte or any of the Subsidiaries; and
Lixte
has
not received any written or verbal inquiry from any federal, state, local,
foreign or other governmental authority, board, agency, commission or
instrumentality concerning the possible violation of any Applicable
Law.
REPRESENTATION
AND WARRANTIES OF SELLER
Seller
represents and warrants to the Company that now and/or as of the
closing:
Title
to Shares.
Seller
is the legal and beneficial owner of the Lixte Shares, and upon consummation
of
the exchange contemplated herein, the Company will acquire from Seller good
and
marketable title to such Shares, free and clear of all Liens excepting only
such
restrictions upon transfer, if any, as may be imposed by Applicable
Law.
Due
Authorization.
Seller
has all requisite power and authority to execute and deliver this Agreement,
and
to consummate the transactions contemplated hereby and thereby. This Agreement
constitutes the valid and binding obligation of Seller, enforceable against
Seller in accordance with its terms, except as may be affected by bankruptcy,
insolvency, moratoria or other similar laws affecting the enforcement of
creditors’ rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
Purchase
for Investment.
Seller
is
acquiring the Shares for investment for Seller’s own account and not as a
nominee or agent, and not with a view to the resale or distribution of any
part
thereof, and Seller has no present intention of selling, granting any
participation in, or otherwise distributing the same, it being understood,
however, that Seller may designate certain persons who will receive the Shares
at the Closing.
Seller
understands that the Shares are not registered under the Securities Act on
the
ground that the sale and the issuance of securities hereunder is exempt from
registration under the Act pursuant to Section 4(2) thereof, and that the
Company’s reliance on such exemption is predicated on such Seller’s
representations set forth herein. Seller is an “accredited investor” as that
term is defined in Rule 501(a) of Regulation D under the Act.
Investment
Experience.
Seller
acknowledges that he can bear the economic risk of his investment, and has
such
knowledge and experience in financial and business matters that he is capable
of
evaluating the merits and risks of the investment in the Shares.
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2.1
Information.
Seller
has carefully reviewed such information as Seller deemed necessary to evaluate
an investment in the Shares. To the full satisfaction of Seller, he has been
furnished all materials that he has requested relating to the Company and the
issuance of the Shares hereunder, and Seller has been afforded the opportunity
to ask questions of representatives of the Company to obtain any information
necessary to verify the accuracy of any representations or information made
or
given to the Seller. Notwithstanding the foregoing, nothing herein shall
derogate from or otherwise modify the representations and warranties of the
Company set forth in this Agreement, on which Seller has relied in making an
exchange of the Lixte Shares for the Shares.
Restricted
Securities.
Seller
understands that the Shares may not be sold, transferred, or otherwise disposed
of without registration under the Act or an exemption therefrom, and that in
the
absence of an effective registration statement covering the Company Shares
or
any available exemption from registration under the Act, the Shares must be
held
indefinitely. Seller is aware that the Shares may not be sold pursuant to
Rule 144 promulgated under the Act unless all of the conditions of that
Rule are met. Among the conditions for use of Rule 144 may be the
availability of current information to the public about the
Company.
COVENANTS
Further
Assurances.
Each of
the Parties shall use reasonable commercial efforts to proceed promptly with
the
transactions contemplated herein, to fulfill the conditions precedent for such
party’s benefit or to cause the same to be fulfilled and to execute such further
documents and other papers and perform such further acts as may be reasonably
required or desirable to carry out the provisions of this Agreement and to
consummate the transactions contemplated herein.
Operation
of Business.
From
the date hereof through the date of the Closing, except as expressly provided
herein, each of the Company and Lixte agrees that it:
will
continue its business only in ordinary course;
will
not,
without the written consent of the other party:
pay
any
dividends, or
make
loans to stockholders or employees;
will
not
issue any additional shares that would materially change the structure and
equity ownership position as set forth herein.
will
report to the other party any indication of potential material adverse factors
in its business or any litigation that may be threatened whereby one of the
parties would be a defendant.
DELIVERIES
Items
to be delivered to Seller prior to or at Closing by the Company.
Articles
of Incorporation and amendments thereto, By-laws and amendments thereto,
certificate of good standing in the Company’s state of
incorporation;
all
applicable schedules hereto;
all
minutes and resolutions of board of director and shareholder meetings in
possession of the Company;
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2.1
shareholder
list;
all
financial statements and all tax returns in possession of the
Company;
resolutions
from the Company’s Board appointing the designee(s) of Seller to the Company’s
Board of Directors;
resolution
from the Company’s Board, and if applicable, shareholder resolutions approving
this transaction;
letters
of resignation from the Company’s current officers and directors to be effective
upon Closing and after the appointments described in this section;
certificates
representing shares of the Shares issued in the denominations as set forth
opposite the name of Seller and/or his designee(s) on Schedule I to this
Agreement;
any
other
document reasonably requested by Seller that he deems necessary for the
consummation of this transaction.
Items
to be delivered to the Company prior to or at Closing by Lixte and
Seller.
all
applicable schedules hereto;
instructions
from Seller appointing his designees to the Company’s Board of
Directors;
duly
executed transfer documents from Seller transferring the Lixte
Shares;
resolutions
from the Board of Directors of Lixte and, if applicable, and shareholder
resolutions approving the transactions contemplated hereby; and
any
other
document reasonably requested by the Company that it deems necessary for the
consummation of this transaction.
CONDITIONS
PRECEDENT
Conditions
Precedent to Closing.
The
obligations of the Parties under this Agreement shall be and are subject to
fulfillment, prior to or at the Closing, of each of the following
conditions:
That
each
of the representations and warranties of the Parties contained herein shall
be
true and correct at the time of the Closing date as if such representations
and
warranties were made at such time except for changes permitted or contemplated
by this Agreement; and
That
the
Parties shall have performed or complied with all agreements, terms and
conditions required by this Agreement to be performed or complied with by them
prior to or at the time of the Closing.
Conditions
to Obligations of Seller.
The
obligations of Seller shall be subject to fulfillment prior to or at the
Closing, of each of the following conditions:
The
Company shall have paid all of its the costs and expenses associated with the
acquisition of the Lixte Shares by the Company;
the
Company shall have received all of the regulatory, shareholder and other third
party consents, permits, approvals and authorizations necessary to consummate
the transactions contemplated by this Agreement; and
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2.1
The
Company shall have complied with Rule 14(f)(1) of the Exchange Act, if
required.
The
Company shall have completed a private placement of its Common Stock of up
to
$1,500,000 at an effective per share price of $.333 (the “Private
Placement”).
The
Company shall have no assets or liabilities, it being understood that on or
before the Closing the Company shall transfer all of its assets to a third
party
on terms reasonably acceptable to Sellers.
Conditions
to Obligations of the Company.
The
obligations of the Company shall be subject to fulfillment at or prior to or
at
the Closing, of each of the following conditions:
Lixte
and
Sellers shall have received all of the regulatory, shareholder and other third
party consents, permits, approvals and authorizations necessary to consummate
the transactions contemplated by this Agreement.
Lixte
shall have furnished to the Company the audited financial statements of Lixte
in
form that satisfies the reporting requirements of the Exchange Act pursuant
to
Regulation S-K. Such financial statements shall be prepared in accordance
with generally accepted accounting principals for the period ended
March 31, 2006.
INDEMNIFICATION
Indemnity
of the Company.
The
Company agrees as to defend, indemnify and hold harmless Seller from and
against, and to reimburse Seller with respect to, all liabilities, losses,
costs
and expenses, including, without limitation, reasonable attorneys’ fees and
disbursements (collectively the “Losses”) asserted against or incurred by Seller
by reason of, arising out of, or in connection with any material breach of
any
representation or warranty contained in this Agreement made by the Company
or in
any document or certificate delivered by the Company pursuant to the provisions
of this Agreement or in connection with the transactions contemplated
thereby.
Indemnity
of Seller.
Seller
agrees to defend, indemnify and hold harmless the Company from and against,
and
to reimburse the Company with respect to, all Losses, including, without
limitation, reasonable attorneys’ fees and disbursements, asserted against or
incurred by the Company by reason of, arising out of, or in connection with
any
material breach of any representation or warranty contained in this Agreement
and made by Seller or in any document or certificate delivered by Seller
pursuant to the provisions of this Agreement or in connection with the
transactions contemplated thereby.
Indemnification
Procedure.
A party
(an “Indemnified Party”) seeking indemnification shall give prompt notice to the
other party (the “Indemnifying Party”) of any claim for indemnification arising
under this Article VIII. The Indemnifying Party shall have the right to
assume and to control the defense of any such claim with counsel reasonably
acceptable to such Indemnified Party, at the Indemnifying Party’s own cost and
expense, including the cost and expense of reasonable attorneys’ fees and
disbursements in connection with such defense, in which event the Indemnifying
Party shall not be obligated to pay the fees and disbursements of separate
counsel for such in such action. In the event, however, that such Indemnified
Party’s legal counsel shall determine that defenses may be available to such
Indemnified Party that are different from or in addition to those available
to
the Indemnifying Party, in that there could reasonably be expected to be a
conflict of interest if such Indemnifying Party and the Indemnified Party have
common counsel in any such proceeding, or if the Indemnified Party has not
assumed the defense of the action or proceedings, then such Indemnifying Party
may employ separate counsel to represent or defend such Indemnified Party,
and
the Indemnifying Party shall pay the reasonable fees and disbursements of
counsel for such Indemnified Party. No settlement of any such claim or payment
in connection with any such settlement shall be made without the prior consent
of the Indemnifying Party which consent shall not be unreasonably
withheld.
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2.1
TERMINATION
Termination.
This
Agreement may be terminated at any time before or, at Closing, by:
The
mutual agreement of the Parties;
Any
party
if:
Any
provision of this Agreement applicable to a party shall be materially untrue
or
fail to be accomplished; or
Any
legal
proceeding shall have been instituted or shall be imminently threatening to
delay, restrain or prevent the consummation of this Agreement;
Upon
termination of this Agreement for any reason, in accordance with the terms
and
conditions set forth in this paragraph, each said party shall bear all costs
and
expenses as each party has incurred.
MISCELLANEOUS
Survival
of Representations, Warranties and Agreements.
All
representations and warranties and statements made by a party to in this
Agreement or in any document or certificate delivered pursuant hereto shall
survive the Closing Date for two years. Each of the parties hereto is executing
and carrying out the provisions of this agreement in reliance upon the
representations, warranties and covenants and agreements contained in this
agreement or at the closing of the transactions herein provided for and not
upon
any investigation which it might have made or any representations, warranty,
agreement, promise or information, written or oral, made by the other party
or
any other person other than as specifically set forth herein.
Access
to Books and Records.
During
the course of this transaction through Closing, each party agrees to make
available for inspection all corporate books, records and assets, and otherwise
afford to each other and their respective representatives, reasonable access
to
all documentation and other information concerning the business, financial
and
legal conditions of each other for the purpose of conducting a due diligence
investigation thereof. Such due diligence investigation shall be for the purpose
of satisfying each party as to the business, financial and legal condition
of
each other for the purpose of determining the desirability of consummating
the
proposed transaction. The Parties further agree to keep confidential and not
use
for their own benefit, except in accordance with this Agreement any information
or documentation obtained in connection with any such
investigation.
Further
Assurances.
If, at
any time after the Closing, the parties shall consider or be advised that any
further deeds, assignments or assurances in law or that any other things are
necessary, desirable or proper to complete the merger in accordance with the
terms of this agreement or to vest, perfect or confirm, of record or otherwise,
the title to any property or rights of the parties hereto, the Parties agree
that their proper officers and directors shall execute and deliver all such
proper deeds, assignments and assurances in law and do all things necessary,
desirable or proper to vest, perfect or confirm title to such property or rights
and otherwise to carry out the purpose of this Agreement, and that the proper
officers and directors the parties are fully authorized to take any and all
such
action.
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EXHIBIT
2.1
Notice.
All
communications, notices, requests, consents or demands given or required under
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered to, or received by prepaid registered or certified mail or
recognized overnight courier addressed to, or upon receipt of a facsimile sent
to, the party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein:
|
Attention:
|
|
If
to Seller and Lixte:
|
|
248
Route 25A, #2
East
Setauket, New York 11733
Attn:
Dr. John S. Kovach
|
|
With
a copy to:
|
|
Troy
& Gould
1801
Century Park East, 26th
Floor
Los
Angeles, California 90067
Attention:
David L. Ficksman, Esq.
Telecopy
No.: (310) 789-1490
|
|
If
to the Company
|
|
1900
Avenue of the Stars
Los
Angeles, California 90067
Attention:
Mr. Richard Rappaport
Telecopy
No.: (310) 843-9304
|
Entire
Agreement.
This
Agreement, the Disclosure Schedules and any instruments and agreements to be
executed pursuant to this Agreement, sets forth the entire understanding of
the
parties hereto with respect to its subject matter, merges and supersedes all
prior and contemporaneous understandings with respect to its subject matter
and
may not be waived or modified, in whole or in part, except by a writing signed
by each of the parties hereto. No waiver of any provision of this Agreement
in
any instance shall be deemed to be a waiver of the same or any other provision
in any other instance. Failure of any party to enforce any provision of this
Agreement shall not be construed as a waiver of its rights under such
provision.
Successors
and Assigns.
This
Agreement shall be binding upon, enforceable against and inure to the benefit
of, the parties hereto and their respective heirs, administrators, executors,
personal representatives, successors and assigns, and nothing herein is intended
to confer any right, remedy or benefit upon any other person. This Agreement
may
not be assigned by any party hereto except with the prior written consent of
the
other parties, which consent shall not be unreasonably withheld.
Governing
Law.
This
Agreement shall in all respects be governed by and construed in accordance
with
the laws of the State of Delaware are applicable to agreements made and fully
to
be performed in such state, without giving effect to conflicts of law
principles.
Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
Construction.
Headings contained in this Agreement are for convenience only and shall not
be
used in the interpretation of this Agreement. References herein to Articles,
Sections and Exhibits are to the articles, sections and exhibits, respectively,
of this Agreement. The Disclosure Schedules are hereby incorporated herein
by
reference and made a part of this Agreement. As used herein, the singular
includes the plural, and the masculine, feminine and neuter gender each includes
the others where the context so indicates.
11
EXHIBIT
2.1
Severability.
If any
provision of this Agreement is held to be invalid or unenforceable by a court
of
competent jurisdiction, this Agreement shall be interpreted and enforceable
as
if such provision were severed or limited, but only to the extent necessary
to
render such provision and this Agreement enforceable.
Expenses.
Each
Party shall separately pay for their respective costs of legal services,
accounting, auditing, communications and due diligence in connection with the
transactions contemplated hereby except that subsequent to the Closing, there
shall be no liability of the Company for any such matters.
Announcements.
Unless
both the Company and Lixte agree in writing, neither the Company nor Lixte
shall
make a public announcement regarding the transactions contemplated hereby.
Any
public announcement shall be made upon the mutual agreement and written consent
of the officers of both corporations. In the event that the Company is required
under federal securities law to either (i) file any document with the SEC
that discloses the transactions contemplated hereby, or (ii) to make a
public announcement regarding the transactions contemplated hereby, the Company
shall provide Lixte with a copy of the proposed disclosure no less than 48
hours
before such disclosure is made and shall incorporate into such disclosure any
reasonable comments or changes that Lixte may request.
IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as
of
the date first set forth above.
|
SRKP 7,
INC., a Delaware corporation
|
|
|
By:
_____________________________________
Name: Richard
Rappaport
Title: President
|
|
|
SELLER:
________________________________________
John
S. Kovach
|
|
|
LIXTE
BIOTECHNOLOGY, INC.
|
|
|
By:
_____________________________________
Name: John
S. Kovach
Title: President
|
12
EXHIBIT
2.1
TABLE
OF
CONTENTS
|
ARTICLE
I THE
EXCHANGE
|
2
|
|
|
1.1
|
The
Exchange
|
2
|
|
1.2
|
Time
and Place of Closing
|
2
|
|
1.3
|
Effective
Time
|
2
|
|
ARTICLE
II REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
2
|
|
|
2.1
|
Due
Organization and Qualification; Due Authorization.
|
2
|
|
2.2
|
No
Conflicts or Defaults
|
3
|
|
2.3
|
Capitalization
|
3
|
|
2.4
|
Financial
Statements
|
3
|
|
2.5
|
No
Assets or Liabilities
|
4
|
|
2.6
|
Taxes
|
4
|
|
2.7
|
Indebtedness;
Contracts; No Defaults
|
4
|
|
2.8
|
Real
Property
|
4
|
|
2.9
|
Compliance
with Law
|
4
|
|
2.10
|
Litigation.
|
4
|
|
2.11
|
Trading
|
4
|
|
2.12
|
Securities
Law Compliance
|
4
|
|
2.13
|
Finder’s
Fees
|
4
|
|
ARTICLE
III REPRESENTATIONS
AND WARRANTIES OF LIXTE
|
4
|
|
|
3.1
|
Due
Organization and Qualification; Subsidiaries; Due
Authorization.
|
5
|
|
3.2
|
No
Conflicts or Defaults
|
5
|
|
3.3
|
Capitalization
|
5
|
|
3.4
|
Taxes
|
5
|
|
3.5
|
Compliance
with Law
|
6
|
|
3.6
|
Litigation.
|
6
|
|
ARTICLE
IV REPRESENTATION
AND WARRANTIES OF SELLER
|
6
|
|
|
4.1
|
Title
to Shares
|
6
|
|
4.2
|
Due
Authorization
|
6
|
|
4.3
|
Purchase
for Investment.
|
6
|
|
4.4
|
Investment
Experience
|
6
|
|
4.5
|
Information
|
7
|
|
4.6
|
Restricted
Securities
|
7
|
|
ARTICLE
V COVENANTS
|
7
|
|
|
5.1
|
Further
Assurances
|
7
|
|
5.2
|
Operation
of Business
|
7
|
|
ARTICLE
VI DELIVERIES
|
7
|
|
|
6.1
|
Items
to be delivered to Seller prior to or at Closing by the
Company.
|
7
|
|
6.2
|
Items
to be delivered to the Company prior to or at Closing by Lixte
and
Seller.
|
8
|
|
ARTICLE
VII CONDITIONS
PRECEDENT
|
8
|
|
|
7.1
|
Conditions
Precedent to Closing
|
8
|
|
7.2
|
Conditions
to Obligations of Seller
|
8
|
|
7.3
|
Conditions
to Obligations of the Company
|
9
|
|
ARTICLE
VIII INDEMNIFICATION
|
9
|
|
|
8.1
|
Indemnity
of the Company
|
9
|
|
8.2
|
Indemnity
of Seller
|
9
|
|
8.3
|
Indemnification
Procedure
|
9
|
|
ARTICLE
IX TERMINATION
|
10
|
|
|
9.1
|
Termination
|
10
|
|
ARTICLE
X MISCELLANEOUS
|
10
|
|
|
10.1
|
Survival
of Representations, Warranties and Agreements
|
10
|
13
EXHIBIT
2.1
TABLE
OF
CONTENTS
(continued)
|
10.2
|
Access
to Books and Records
|
10
|
|
10.3
|
Further
Assurances
|
10
|
|
10.4
|
Notice
|
11
|
|
10.5
|
Entire
Agreement
|
11
|
|
10.6
|
Successors
and Assigns
|
11
|
|
10.7
|
Governing
Law
|
11
|
|
10.8
|
Counterparts
|
11
|
|
10.9
|
Construction
|
11
|
|
10.10
|
Severability
|
12
|
|
10.11
|
Expenses
|
12
|
|
10.12
|
Announcements
|
12
|
14