Exhibit 10.1
PREFERRED STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and entered
into as of the 3rd day of November 2006, by and between Bronze Marketing, Inc.,
a Nevada corporation (the "Company"), and Halter Financial Investments, L.P., a
Texas limited partnership ("Purchaser"), with respect to the following:
Premises
Purchaser desires to acquire a controlling interest in the Company, and
the Company desires to sell such a controlling interest in the Company to
Purchaser, upon and subject to the terms and conditions of this Agreement.
Agreement
NOW, THEREFORE, on these premises and for and in consideration of the
mutual promises and covenants set forth herein, the Company and Purchaser hereby
agree as follows:
1. Purchase and Sale of Shares. Purchaser agrees to acquire from the
Company, and the Company agrees to sell and to deliver to Purchaser, 135,000
restricted shares of the Company's Series A Voting Convertible Preferred Stock,
par value $0.001 (the "Shares"), in consideration of Purchaser's payment to the
Company of $425,000 in immediately available funds at Closing (as defined
herein). The rights and preferences associated with the Shares are set forth in
their entirety in an exhibit hereto entitled "Certificate of Designations,
Rights and Preferences with Respect to the Series A Voting Convertible Preferred
Stock", which document shall be filed with the Nevada Secretary of State at or
before Closing. All references to Shares herein include the shares of the
Company's common stock into which the Preferred Shares are convertible as though
the Preferred Shares had been converted into common stock. The transactions
contemplated hereby shall be closed by the delivery of the documents and the
completion of the acts more particularly set forth herein. The issue and sale of
the Shares to Purchaser hereunder is an isolated offering of preferred stock
being conducted by the Company in reliance upon the exemption from the
registration requirements of the Securities Act of 1933, as amended (
"Securities Act" or the "Act"), afforded by Section 4(2) and/or Section 4(6)
thereunder.
2. Closing. The closing of the transactions contemplated hereby shall
take place at a mutually agreeable location in Salt Lake City, Utah on a
mutually convenient date and time within five business days after the execution
of this Agreement (the "Closing").
(a) At the Closing, the Company shall deliver or cause to be delivered:
(i) stock certificates for the Shares, which shall be
registered in the names and denominations requested
by Purchaser or its designees, and the same will be
registered on the stock transfer books of the Company
as the record owner of the Shares;
(ii) the corporate minute book and all other corporate
books and records of the Company, including
agreements, stockholder records, financial records,
and related supporting documents and data under the
care, custody, or control of the Company or its
officers and/or directors;
(iii) a duly executed officer's certificate pursuant to
Section 6(c); and
(iv) a duly executed receipt for the payment for the Shares.
(b) At the Closing, Purchaser shall deliver or cause to be delivered:
(i) a bank wire transfer to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates
Trust Account for the benefit of the Company in the
aggregate amount of $425,000; and
(ii) a duly executed officer's certificate pursuant to
Section 7(c)
3. Representations and Warranties of the Company. The Company represents
and warrants to Purchaser that, at the date of this Agreement and on the date of
the Closing:
(a) The Company has the full power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of the Company,
enforceable in accordance with its terms. The Company need not give any
notice to, make any filings with, or obtain any authorization, consent,
or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement, except
filings with the U.S. Securities and Exchange Commission ("SEC"), state
securities regulators and the State of Nevada as may be required in
connection with the transactions contemplated hereby.
(b) The Company and each of its subsidiaries, if any, are corporations
duly organized, validly existing and in good standing under the laws of
their states of incorporation, with all requisite corporate power and
authority to carry on the business in which they are engaged and to own
the properties they own, and the Company has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, without the approval of its
stockholders. The Company and each of its subsidiaries are duly
qualified and licensed to do business and are in good standing in all
jurisdictions where the nature of their business makes such
qualification necessary, except where the failure to be so qualified or
licensed would not have a material adverse effect on the business of
the Company and its subsidiaries, taken as a whole.
(c) There are no legal actions or administrative proceedings or
investigations instituted, or to the best knowledge of the Company
threatened, against the Company, that could reasonably be expected to
have a material adverse effect on the Company or any subsidiary, any of
the Shares, or the business of the Company and its subsidiaries, if
any, or which concerns the transactions contemplated by this Agreement.
(d) The Company, by appropriate and required corporate action, has duly
authorized the execution of this Agreement and the issuance and
delivery of the Shares. The Shares are not subject to preemptive or
other rights of any stockholders of the Company and when issued in
accordance with the terms of this Agreement and the Articles of
Incorporation of the Company, as amended and currently in effect, the
Shares will be validly issued, fully paid and nonassessable and free
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and clear of all pledges, liens and encumbrances. The issuance of the
Shares hereunder will not trigger any outstanding antidilution rights.
(e) Performance of this Agreement and compliance with the provisions
hereof will not violate any provision of any applicable law or of the
Articles of Incorporation or Bylaws of the Company, or of any of its
subsidiaries, and, will not conflict with or result in any breach of
any of the terms, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon, any of the properties or assets of the Company, or of
any of its subsidiaries, pursuant to the terms of any indenture,
mortgage, deed of trust or other agreement or instrument binding upon
the Company, or any of its subsidiaries, other than such breaches,
defaults or liens which would not have a material adverse effect on the
Company and its subsidiaries taken as a whole. The Company is not in
default under any provision of its Articles of Incorporation or Bylaws
or other organizational documents or under any provision of any
agreement or other instrument to which it is a party or by which it is
bound or of any law, governmental order, rule or regulation so as to
affect adversely in any material manner its business or assets or its
condition, financial or otherwise.
(f) The Company has filed all periodic reports required to be filed by
it with the SEC (the "Disclosure Documents") from January 1, 2003
through the date hereof. The Disclosure Documents, taken together, do
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein to make the statements
contained therein not misleading.
(g) The Company has provided Purchaser with all material public
information in connection with the business of the Company and the
transactions contemplated by this Agreement, and no representation or
warranty made, nor any document, statement, or financial statement
prepared or furnished by the Company in connection herewith contains
any untrue statement of material fact, or omits to state a material
fact necessary to make the statements or facts contained herein or
therein not misleading.
(h) This Agreement has been duly executed and delivered by the Company
and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(i) No registration, authorization, approval, qualification or consent
of any court or governmental authority or agency is necessary in
connection with the execution and delivery of this Agreement or the
offering, issuance or sale of the Shares under this Agreement except
any filings with the SEC, state securities regulators and the State of
Nevada as may be required in connection with the transactions
contemplated hereby including the filing of a Certificate of
Designation of Rights and Preferences with the Secretary of State of
Nevada with respect to the Series A Voting Convertible Preferred Stock
attached hereto as Exhibit A.
(j) The Company is not now, and after the sale of the Shares under this
Agreement and under all other agreements and the application of the net
proceeds from the sale of the Shares will not be required to register
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as an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(k) The Company has filed all material tax returns required to be
filed, which returns are true and correct in all material respects, and
the Company is not in default in the payment of any taxes, including
penalties and interest, assessments, fees and other charges, shown
thereon as due or otherwise assessed, other than those being contested
in good faith and for which adequate reserves have been provided or
those currently payable without interest which were payable pursuant to
said returns or any assessments with respect thereto.
(l) The Company has not taken any action outside the ordinary course of
business designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Company's
common stock to facilitate the sale or resale of the Company's common
stock in any manner in contravention of applicable securities laws;
(m) Subject to the accuracy of the Purchaser's representations and
warranties in Section 4 of this Agreement, the offer, sale, and
issuance of the Shares in conformity with the terms of this Agreement
constitute transactions that meet the requirements for exemption from
the registration requirements of Section 5 of the Securities Act;
(n) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf, has directly or indirectly made any
offers or sales of any security or solicited any offers to buy any
security under circumstances that would require registration under the
Securities Act of the issuance of said securities to any purchaser. The
Company has not issued or sold any shares of its capital stock for in
excess of two years prior to the date hereof and the issuance of the
Shares to the Purchaser will not be integrated with any other issuance
of the Company's securities (past, current or future) for purposes of
the Securities Act. The Company will not make any offers or sales of
any security (other than the Shares) that would cause the sale of the
Shares hereunder to be integrated with any other offering of securities
by the Company for purposes of any registration requirement under the
Securities Act.
(o) The Company will at the date of Closing be in material compliance
with all applicable securities (or "Blue Sky") laws of the states of
the United States in connection with the issuance and sale of the
Shares to Purchaser.
(p) The Company shall use all commercially reasonable efforts to keep
its common stock quoted on the OTC Bulletin board.
(q) The Company's board of directors has, by unanimous written consent,
determined that this Agreement and the transactions contemplated by
this Agreement, are advisable and in the best interests of the
Company's stockholders, and the President of the Company has been
authorized and directed to sign this Agreement. Subject to meeting all
conditions precedent to closing the transactions contemplated by the
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terms hereof, the Company's President will take all steps to complete
the transactions contemplated and described herein and to consummate
the Closing as described herein.
(r) As of the date hereof, the capitalization of the Company consists
of 100,000,000 shares of common stock, par value $0.001, of which
1,500,000 shares are issued and outstanding, all of which are legally
issued, fully paid, and nonassessable and not issued in violation of
the pre-emptive rights of any person. The Company has 1,000,000 shares
of preferred stock authorized which can be issued with such rights and
preferences as determined by the Company's board of directors. No
shares of preferred stock are currently, or have ever been, issued and
outstanding. The Company has no options, warrants or rights issued or
outstanding.
(s) Since June 30, 2006, there has not been:
(i) any material change in the business, operations, or
financial condition or the manner of conducting the
business of the Company;
(ii) any declaration, setting aside, or payment of any
dividend or other distribution in respect of the
shares of the Company of any class, or any direct or
indirect redemption, purchase, or other acquisition
of any shares of any class of the Company;
(iii) any agreement or arrangement to pay or accrue
compensation to any of the Company's officers,
directors, employees, or agents;
(iv) any option, warrant, or right to purchase, or any
other right to acquire shares of any class of the
Company granted to any person;
(v) any employment, bonus, or deferred compensation
agreement entered into between the Company and any of
its officers, directors, or any other employees or
consultants;
(vi) any issuance of securities of the Company;
(vii) any indebtedness incurred or guaranteed by the
Company for borrowed money or any commitment to
borrow money entered into by the Company or any
indebtedness for accounts payable for materials or
goods purchased by or for services rendered on behalf
of the Company, except for items incurred in the
ordinary course of business or in connection with
this Agreement and the transactions contemplated
hereby; or
(viii) any amendment of the Articles of Incorporation or
Bylaws of the Company.
(t) The Company will comply with all requirements imposed by the NASD,
the SEC and the State of Nevada to accomplish the proposals described
herein including, but not limited to, Section 4 of the Securities Act
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and Section 13 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and will give the Purchaser the reasonable prior
opportunity to comment on all filings made with these and any other
required governmental agencies.
4. Representations and Warranties of Purchaser. Purchaser represents
and warrants to the Company that, at the date of this Agreement and on the date
of Closing:
(a) Purchaser has been furnished with and has carefully read the
Disclosure Documents as set forth in Section 3(f) hereof. With respect
to individual or partnership tax and other economic considerations
involved in this investment, Purchaser is not relying on the Company
(or any agent or representative of the Company). Purchaser has
carefully considered and has, to the extent Purchaser believes such
discussion necessary, discussed with Purchaser's legal, tax, accounting
and financial advisers the suitability of an investment in the Shares
for Purchaser's particular tax and financial situation.
(b) Purchaser has had an opportunity to inspect relevant documents
relating to the organization and operations of the Company. Purchaser
acknowledges that all documents, records and books pertaining to this
investment which Purchaser has requested have been made available for
inspection by Purchaser and Purchaser's attorney, accountant or other
adviser(s).
(c) Purchaser and/or Purchaser's advisor(s) has/have had a reasonable
opportunity to ask questions of and receive answers and to request
additional relevant information from a person or persons acting on
behalf of the Company concerning the transactions contemplated by this
Agreement.
(d) Purchaser is not purchasing the Shares as a result of or subsequent
to any advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar.
(e) Purchaser, by reason of Purchaser's business or financial
experience, has the capacity to protect Purchaser's own interests in
connection with the transactions contemplated by this Agreement.
(f) Purchaser has adequate means of providing for Purchaser's current
financial needs and contingencies, is able to bear the substantial
economic risks of an investment in the Shares for an indefinite period
of time, has no need for liquidity in such investment and, at the
present time, could afford a complete loss of such investment.
(g) Purchaser has such knowledge and experience in financial, tax and
business matters so as to enable Purchaser to use the information made
available to Purchaser in connection with the transaction to evaluate
the merits and risks of an investment in the Shares and to make an
informed investment decision with respect thereto.
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(h) Purchaser acknowledges that the Shares have not been registered
under the Act or under any the securities act of any state. Purchaser
understands further that in absence of an effective registration
statement, the Shares can only be sold pursuant to some exemption from
registration, such as Rule 144 of the Act, which requires, among other
conditions, that the Shares must be held for a minimum of one (1) year.
(i) Purchaser recognizes that investment in the Shares involves
substantial risks. Purchaser acknowledges that Purchaser has reviewed
the risk factors identified within the Disclosure Documents. Purchaser
further recognizes that no Federal or state agencies have passed upon
this transaction or made any finding or determination as to the
fairness of this investment.
(j) Purchaser acknowledges that each certificate representing the
Shares shall contain a legend substantially in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") OR UNDER APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR PURSUANT
TO AVAILABLE EXEMPTIONS FROM SUCH
REGISTRATION, PROVIDED THAT THE PURCHASER
DELIVERS TO THE COMPANY AN OPINION OF
COUNSEL (WHICH OPINION AND COUNSEL ARE
REASONABLY SATISFACTORY TO THE COMPANY)
CONFIRMING THE AVAILABILITY OF SUCH
EXEMPTION.
(k) Purchaser has the full legal right and power and all authority and
approval required (i) to execute and deliver, or authorize execution
and delivery of, this Agreement and all other instruments executed and
delivered by or on behalf of Purchaser in connection with the purchase
of the Shares, and (ii) to purchase and hold the Shares. The signature
of the party signing on behalf of Purchaser is binding upon Purchaser.
Purchaser has not been formed for the specific purpose of acquiring the
Shares.
(l) Purchaser understands, acknowledges and agrees with the Company as
follows:
(i) No federal or state agency has made any findings or
determination as to the fairness of the terms of this
transaction for investment or any recommendations or
endorsement of the Shares.
(ii) The transaction is intended to be exempt from
registration under the Securities Act by virtue of
Section 4(2) of the Securities Act.
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(iii) Purchaser acknowledges that the information furnished
pursuant to this Agreement by the Company to
Purchaser or its advisers in connection with the
transaction, is confidential and nonpublic and agrees
that all such written information which is material
and not yet publicly disseminated by the Company
shall be kept in confidence by Purchaser and neither
used by Purchaser for Purchaser's personal benefit
(other than in connection with this transaction), nor
disclosed to any third party, except Purchaser's
legal and other advisers who shall be advised of the
confidential nature of such information, for any
reason; provided, however, that this obligation shall
not apply to any such information that (i) is part of
the public knowledge or literature and readily
accessible at the date hereof, (ii) becomes a part of
the public knowledge or literature and readily
accessible by publication (except as a result of a
breach of this provision) or (iii) is received from
third parties (except third parties who disclose such
information in violation of any confidentiality
agreements or obligations, including, without
limitation, any subscription agreement entered into
with the Company).
(iv) IN MAKING AN INVESTMENT DECISION, PURCHASER HAS
RELIED ON ITS OWN EXAMINATION OF THE COMPANY AND THE
TERMS OF THE TRANSACTION, INCLUDING THE MERITS AND
RISKS INVOLVED. THE SHARES HAVE NOT BEEN RECOMMENDED
BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR
REGULATORY AUTHORITY. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
(m) Purchaser will comply with all requirements imposed on it by the
Exchange Act in connection with the consummation of the transactions
contemplated herein.
5. Special Covenants. The parties make and agree to the following
special covenants which have served as material inducements for their respective
decisions to enter into this Agreement.
(a) Actions of the Company's board of directors. The Company's board of
directors has, by unanimous written consent, authorized and approved
the following: (i) this Stock Purchase Agreement and the transactions
contemplated hereby; (ii) the declaration of a special cash dividend in
the amount of $417,500 to the common stockholders of the Company as of
a record date on or about, but no less than, ten days from the Closing
Date (the "Dividend Record Date"); (iii) the Certificate of
Designations, Rights and Preferences with Respect to the Series A
Voting Convertible Preferred Stock; and (iv) the appointment of ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ a person designated by Purchaser, as an additional director
of the Company effective on the Closing Date. The Company's board of
directors will authorize and approve such other actions as may be
reasonably requested by Purchaser or may be required to consummate the
transactions contemplated by this Agreement.
(b) Limitation on Reverse Stock Splits. Following Closing, Purchaser,
as the controlling stockholder of the Company, will not permit the
Company to effect any reverse stock split following Closing unless
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as representative of the Company's current
stockholders, consents to any such reverse stock split in writing in
advance; provided, that the Company shall be entitled to effect a
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reverse stock split on a basis of 1 post split share for each 10 (or
fewer) pre-split shares without such approval. This provision shall be
binding upon any permitted successors or assigns of Purchaser and shall
automatically terminate at the time the Company enters into a Going
Public Transaction in accordance with the terms of this Agreement.
(c) Limitation on Future Share Issuances. Following Closing, Purchaser,
as the controlling stockholder of the Company, will not permit the
Company to authorize the issuance of any additional shares of the
Company's capital stock or securities convertible into the Company's
capital stock except in connection with a combination transaction with
a corporation or other business entity with current business operations
(a "Going Public Transaction") and except the issuance of common stock
upon the conversion of the Shares. This provision shall be binding upon
any permitted successors or assigns of Purchaser and shall
automatically terminate at the time the Company enters into a Going
Public Transaction in accordance with the terms of this Agreement.
(d) Minimum Qualifications for Going Public Transaction. Following
Closing, Purchaser, as the controlling stockholder of the Company, will
not allow the Company to enter into a Going Public Transaction unless
the Company, on a combined basis with the operating entity with which
it completes a Going Public Transaction, satisfies the financial
conditions for listing on the NASDAQ Capital Market immediately
following the closing of the Going Public Transaction. This provision
shall be binding upon any permitted successors or assigns of Purchaser
and shall automatically terminate at the time the Company enters into a
Going Public Transaction in accordance with the terms of this
Agreement.
(e) Transfer and Registration Rights.
(i) Mandatory Registration. Upon receipt of written
demand by Purchaser, the Company shall prepare, and,
as soon as practicable but in no event later than 60
calendar days after the date of such notice, file
with the SEC a Registration Statement or Registration
Statements (as is necessary) on Form S-3 (or if such
form is unavailable, such other form as is available
for registration) covering the resale of all of the
Shares (or the shares of common stock issuable upon
conversion of the Shares). The Company shall use its
best efforts to have the Registration Statement
declared effective by the SEC as soon as practicable,
but in no event later than 120 calendar days after
the date notice is received.
(ii) Piggy Back Registration Rights.
(aa) If the Company decides, including as required
under any demand registration rights agreement, to
register any of its common stock or securities
convertible into or exchangeable for common stock
under the Securities Act on a form which is suitable
for an offering for cash or shares of the Company
held by third parties and which is not a registration
solely to implement an employee benefit plan, a
registration statement on Form S-4 (or successor
form) or a transaction to which Rule 145 or any other
similar rule of the SEC is applicable, the Company
will promptly give written notice to the Purchaser of
its intention to effect such a registration. Subject
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to Section 5(e)(ii)(bb) below, the Company shall
include all of the Shares that the Purchaser requests
to be included in such a registration by a written
notice delivered to the Company within fifteen (15)
days after the notice given by the Company.
(bb) If the registration, as described in Section
5(e)(ii)(aa) above, involves an underwritten
offering, the Company will not be required to
register Shares in excess of the amount that the
principal underwriter reasonably and in good faith
recommends may be included in such offering (a
"Cutback"), which recommendation, and supporting
reasoning, shall be delivered to Purchaser. If such a
Cutback occurs, the number of shares that are
entitled to be included in the registration and
underwriting shall be allocated in the following
manner: (i) first, to the Company for any securities
it proposes to sell for its own account, (ii) second,
to the Purchaser requiring such registration, and
(iii) third, to other holders of stock of the Company
requesting inclusion in the registration, pro rata
among the respective holders thereof on the basis of
the number of shares for which each such requesting
holder has requested registration.
(cc) All costs and expenses of any such registration
statement shall be paid by the Company, other than
sales commissions and the expenses of any separate
legal counsel engaged by Purchaser.
(dd) The Shares issued pursuant to this Agreement may
not be transferred except in a transaction which is
in compliance with the Act and applicable state laws
and regulations.
(f) Directors of Company at Closing. As provided in Section 5(a) above,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall remain on the board of directors of the Company
after Closing and one person designated by Purchaser shall be elected
to the Company's board of directors and shall commence his or her term
on the Closing Date.
(g) Special Cash Dividend. The Company shall declare and pay to the
persons who are common stockholders of record on the Dividend Record
Date a special cash dividend of $0.278333 per pre-split share of common
stock for an aggregate dividend of $417,500. Purchaser expressly
acknowledges that it cannot convert the Shares to common stock prior to
the Dividend Record Date and that it will not be entitled to
participate in such dividend. Purchaser also expressly acknowledges
that a virtually all of the purchase price for the Shares will be used
to pay the dividend, which will have the effect of materially reducing
the book value of the Company immediately following Closing.
(h) Form S-8 Registration of Acquiror Company Common Stock. From and
after the date of Closing and until such time as the Company completes
a Going Public Transaction, the Company shall not issue any shares of
the Company's common stock pursuant to a registration statement on Form
S-8.
(i) Resales of Restricted Stock. In the event the Company determines in
good faith and upon the advice of its counsel that is unable to permit
the resale under Rule 144(k) of any of the shares (the "Subject
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Shares") of restricted stock presently held by the Company's current
officers, directors and principal stockholders (the "Subject
Stockholders"), which determination shall be made within ten business
days of the written request therefor from the Subject Stockholders,
then the Subject Stockholders shall immediately be entitled to the same
demand and piggyback registration rights with respect to the Subject
Shares that are provided to Purchaser pursuant to Section 5(e) hereof
and, in the event of any Cutback, an equal number of the Shares of
Purchaser and the Subject Stockholders shall be included in any
registration statement (unless all of the Subject Shares have been
included, in which event a greater number of the Shares of Purchaser
may also be included) with respect to which Purchaser and the Subject
Stockholders have requested registration. All costs and expenses of
registration shall be paid by the Company, other than sales commissions
and the expenses of any separate legal counsel engaged by the Subject
Stockholders.
6. Conditions to Purchaser's Obligations. The obligations of Purchaser
to close the transactions contemplated by this Agreement are subject, at its
discretion, to the following conditions:
(a) The representations and warranties made by the Company in this
Agreement were true when made and shall be true at the date of Closing
with the same force and effect as if such representations and
warranties were made at and as of the date of Closing (except for
changes permitted by this Agreement), and the Company shall have
performed and complied with all covenants and conditions required by
this Agreement to be performed or complied with by it prior to or at
the Closing.
(b) Prior to the date of closing, there shall not have occurred any
material adverse change in the financial condition, business, or
operations of the Company, nor shall any event have occurred which,
with the lapse of time or the giving of notice or both, may cause or
create any material adverse change in the financial condition,
business, or operations of the Company.
(c) Purchaser shall have been furnished with a certificate, signed by
the president of the Company and dated as of the date of closing,
certifying as to the matters set forth in (a) and (b) above.
(d) Purchaser shall have received copies of all documents and
information which it may have reasonably requested in connection with
the transactions contemplated by this Agreement.
(e) No stop order or suspension of trading shall have been imposed by
the SEC, or any other governmental regulatory body with respect to
public trading in the Company's common stock.
7. Conditions to the Company's Obligations. The obligations of the
Company to close the transactions contemplated by this Agreement are subject, at
its discretion, to the following conditions:
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(a) The representations and warranties made by Purchaser in this
Agreement were true when made and shall be true at the date of closing
with the same force and effect as if such representations and
warranties were made at and as of the date of closing (except for
changes permitted by this Agreement), and Purchaser shall have
performed and complied with all covenants and conditions required by
this Agreement to be performed or complied with by it prior to or at
the Closing.
(b) Prior to the date of closing, there shall not have occurred any
material adverse change in the financial condition, business, or
operations of Purchaser, nor shall any event have occurred which, with
the lapse of time or the giving of notice or both, may cause or create
any material adverse change in the financial condition, business, or
operations of Purchaser.
(c) The Company shall have been furnished with a certificate, signed by
a duly designated and authorized representative of Purchaser and dated
as of the date of closing, certifying as to the matters set forth in
(a) and (b) above.
(d) No stop order or suspension of trading shall have been imposed by
the SEC, or any other governmental regulatory body with respect to
public trading in the Company's common stock.
8. Termination.
(a) This Agreement may be terminated by the board of directors of the
Company or by the Purchaser's General Partner at any time prior to the
Closing if:
(i) there shall be any actual or threatened action or
proceeding before any court or any governmental body
which shall seek to restrain, prohibit, or invalidate
the transactions contemplated by this Agreement and
which, in the judgment of such board of directors,
made in good faith and based on the advice of its
legal counsel, makes it inadvisable to proceed with
the transactions contemplated by this Agreement;
(ii) any of the transactions contemplated by this
Agreement are disapproved by any regulatory authority
whose approval is required to consummate such
transactions or in the judgment of such board of
directors, made in good faith and based on the advice
of counsel, there is substantial likelihood that any
such approval will not be obtained or will be
obtained only on a condition or conditions which
would be unduly burdensome, making it inadvisable to
proceed with the exchange; or
(iii) there shall occur any material adverse change in the
assets, properties, business, or financial condition
of the party not seeking termination pursuant to this
provision, which material adverse change occurs
subsequent to the date of the information included in
this Agreement.
In the event of termination pursuant to this Section 8(a), no
obligation, right, or liability shall arise hereunder, and each party
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shall bear all of the expenses incurred by it in connection with the
negotiation, drafting, and execution of this Agreement and the
transactions herein contemplated.
(b) This Agreement may be terminated at any time prior to the Closing
by action of the board of directors of the Company if Purchaser shall
fail to comply in any material respect with any of its covenants or
agreements contained in this Agreement or if any of the representations
or warranties of Purchaser contained herein shall be inaccurate in any
material respect. If this Agreement is terminated pursuant to this
Section 8(b), this Agreement shall be of no further force or effect,
and no obligation, right, or liability shall arise hereunder, except
that Purchaser shall reimburse the Company for all costs and expenses
actually and reasonably incurred by it in connection with this
Agreement, which were incurred from and after the date hereof;
provided, however, such termination shall not relieve Purchaser from
any liability for damages resulting from any willful and intentional
breach of this Agreement.
(c) This Agreement may be terminated at any time prior to the Closing
by action of the Purchaser's General Partner if the Company shall fail
to comply in any material respect with any of its covenants or
agreements contained in this Agreement or if any of the representations
or warranties of the Company contained herein shall be inaccurate in
any material respect. If this Agreement is terminated pursuant to this
Section 8(c), this Agreement shall be of no further force or effect and
no obligation, right, or liability shall arise hereunder, except that
the Company shall reimburse Purchaser for all costs and expenses
actually and reasonably incurred in connection with Agreement, which
were incurred from and after the date hereof; provided, however, no
such termination shall relieve the Company from any liability for
damages resulting from any willful and intentional breach of this
Agreement.
(d) This Agreement may be terminated by either the board of directors
of the Company or the Purchaser's General Partner, if Closing shall not
have occurred by the close of business on December 31, 2006 (the
"Termination Date "); provided, however, that the right to terminate
this Agreement under this section shall not be available to any party
whose failure to fulfill any obligation under this Agreement has been
the cause of, or resulted in, the failure of the Closing to occur on or
before the Termination Date. In the event of termination pursuant to
this Section 8(d), no obligation, right, or liability shall arise
hereunder, and each party shall bear all of the expenses incurred by it
in connection with the negotiation, drafting, and execution of this
Agreement and the transactions herein contemplated.
9. Finders. Each of the respective parties hereto represents and
warrants to the other that no third person is entitled to any commission or
other compensation for in any way bringing the parties together or being
instrumental in reaching this Agreement or otherwise acting as a finder or
broker in connection herewith other than as disclosed in writing to the other
party hereto.
10. Survival. Except as otherwise expressly provided herein, the
representations, warranties and covenants of the respective parties set forth in
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Sections 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18 and 19 shall survive the
Closing and shall continue in full force and effect for a period of three years.
11. Governing Law. This Agreement shall be governed by and construed
under and in accordance with the laws of the state of Nevada.
12. Expenses of Legal Proceedings. In any action, proceeding or
counterclaim brought to enforce any of the provisions of this Agreement or to
recover damages, costs and expenses in connection with any breach of the
Agreement, the prevailing party shall be entitled to be reimbursed by the
opposing party for all of the prevailing party's reasonable outside attorneys'
fees, costs and other out-of-pocket expenses incurred in connection with such
action, proceeding or counterclaim.
13. Expenses of Transaction. Except as otherwise expressly provided in
this Agreement, each party to this Agreement will bear its respective expenses
incurred in connection with the preparation, execution, and performance of this
Agreement and the transactions contemplated by this Agreement, including all
fees and expenses of agents, representatives, counsel, and accountants.
14. Public Announcements. The Company and Purchaser shall consult with
one another in issuing any press releases or otherwise making public statements
or filings and other communications with the Commission or any regulatory agency
or stock market or trading facility with respect to the transactions
contemplated hereby and neither party shall issue any such press release or
otherwise make any such public statement, filings or other communications
without the prior written consent of the other, which consent shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, however, no
prior consent shall be required if any such disclosure is required by law, in
which case the disclosing party shall use its reasonable best efforts in good
faith to provide the other party with prior notice of such public statement,
filing or other communication and incorporate into such public statement, filing
or other communication the reasonable comments of the other party.
15. Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof, and there are no
other courses of dealing, understandings, agreements, representations, or
warranties, written or oral, except as set forth herein. No amendment or
modification hereof shall be effective until and unless the same shall have been
set forth in writing and signed by the parties hereto.
16. Severability. If any provision of this Agreement or the application
of such provision to any person or circumstance shall be held invalid or
unenforceable, the remainder of this Agreement or the application of such
provisions to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and this Agreement shall
be construed as if such invalid or unenforceable provision were not contained
herein.
17. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if sent by registered mail or certified
mail, postage prepaid, or by a commercially recognized means of overnight
delivery that requires confirmation of receipt, addressed as follows:
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If to the Company, to: Bronze Marketing, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to Purchaser, to: Halter Financial Investments, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
or such other addresses as shall be furnished in writing by either party to the
other in the manner for giving notices hereunder, and any such notice shall be
deemed to have been given as of the date so mailed.
18. Further Assurances. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
19. Assignments, Successors, and No Third-Party Rights. No party may
assign any of its rights under this Agreement without the prior consent of the
other party. Nothing expressed or referred to in this Agreement will be
construed to give any Person other than the parties to this Agreement and, for
purposes of Section 5, the current members of the Company's board of directors
as representatives of the Company's current stockholders, any legal or equitable
right, remedy, or claim under or with respect to this Agreement or any provision
of this Agreement. This Agreement and all of its provisions and conditions are
for the sole and exclusive benefit of the parties to this Agreement and their
successors and assigns.
20. Execution in Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which taken together shall be but a single instrument.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
The Company: Bronze Marketing, Inc.
A Nevada corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Purchaser: Halter Financial Investments, L.P.
A Texas Limited Partnership
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
15
