MAKE GOOD ESCROW AGREEMENT
Exhibit
10.3
This
Make
Good Escrow Agreement (the "Make Good Agreement"), dated effective as of
February 1, 2007, is entered into by and among Bronze Marketing, Inc., a Nevada
corporation (the "Company"), Xxxx Capital Partners, LLC, as agent (“Xxxx”), Xx.
Xxxxxx Xxxx, in her individual capacity ("Make Good Pledgor"), and Xxxxx Fargo
Bank, National Association, as escrow agent ("Escrow Agent").
WHEREAS,
each of the investors in the private offering of securities of the Company
(the
"Investors") has entered into a Securities Purchase Agreement, dated February
1,
2007 (the "SPA"), evidencing their participation in the Company's private
offering (the "Offering")
of
securities. As an inducement to the Investors to participate in the Offering
and
as set forth in the SPA, Make Good Pledgor agreed to place the Escrow Shares
(as
defined in Section 2 hereto) into escrow for the benefit of the Investors in
the
event the Company failed to satisfy certain After-Tax Net Income thresholds.
WHEREAS,
pursuant to the requirements of the SPA, the Company and Make Good Pledgor
have
agreed to establish an escrow on the terms and conditions set forth in this
Make
Good Agreement;
WHEREAS,
Xxxx has agreed to act as agent for the Investors in connection with this Make
Good Agreement pursuant to the terms and conditions of that certain Agency
Agreement, dated as of the date hereof, by and among Xxxx and the
Investors;
WHEREAS,
the Escrow Agent has agreed to act as escrow agent pursuant to the terms and
conditions of this Make Good Agreement; and
WHEREAS,
all capitalized terms used but not defined herein shall have the meanings
assigned them in the SPA;
NOW,
THEREFORE, in consideration of the mutual promises of the parties and the terms
and conditions hereof, the parties hereby agree as follows:
1.
Appointment of Escrow Agent.
Make
Good Pledgor and the Company hereby appoint Escrow Agent to act in accordance
with the terms and conditions set forth in this Make Good Agreement, and Escrow
Agent hereby accepts such appointment and agrees to act in accordance with
such
terms and conditions.
2.
Establishment of Escrow.
Within
one Business Day following the execution of this Make Good Agreement, Make
Good
Pledgor shall deliver, or cause to be delivered, to the Escrow Agent
certificates evidencing an aggregate of 39,473.68 shares of the Company’s Series
B Voting Convertible Stock, which are automatically convertible into 39,473,672
shares (as converted, the "Escrow Shares") of the Company's common stock,
par
value $0.001 per share (the “Common Stock”), along with bank signature stamped
stock powers executed in blank (or such other signed instrument of transfer
acceptable to the Company’s Transfer Agent). As used in this Make Good
Agreement, “Transfer Agent” means Interwest Transfer Co., Inc., or such other
entity hereafter retained by the Company as its stock transfer agent as
specified in a writing from the Company to the Escrow Agent and Xxxx. The
number
of Escrow Shares equals the number of shares of Common Stock which are issuable
upon the automatic conversion of the Company’s Series B Voting Convertible Stock
in accordance with the terms of the Certificate of Designation filed by the
Company with the Secretary of State of the State of Nevada, setting forth
the
rights, preferences and privileges of such Series B preferred stock (the
“Certificate of Designation” and such conversion shares, the “Underlying
Shares”).
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3. Representations
of Make Good Pledgor.
Make
Good Pledgor hereby represents and warrants to Xxxx as follows:
(i)
All
of the Escrow Shares are validly issued, fully paid and nonassessable shares
of
the Company, and free and clear of all pledges, liens and encumbrances. Upon
any
transfer of Escrow Shares to Investors hereunder, Investors will receive full
right, title and authority to such shares as holders of Common Stock of the
Company.
(ii) Performance
of this Make Good Agreement and compliance with the provisions hereof will
not
violate any provision of any applicable law 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 Make Good Pledgor pursuant
to the terms of any indenture, mortgage, deed of trust or other agreement or
instrument binding upon Make Good Pledgor, other than such breaches, defaults
or
liens which would not have a material adverse effect taken as a whole.
4.
Disbursement of Escrow Shares.
a. Fiscal
Year Ended June 30, 2007.
Make
Good
Pledgor agrees that if the After-Tax Net Income for the fiscal year ended June
30, 2007 reported in the Company’s Annual Report on Form 10-K for the fiscal
year ending June 30, 2007, as filed with the Commission (the “2007 Annual
Report”) is less than $18,900,000 (the “2007 Guaranteed ATNI”), Xxxx
shall provide written instruction (with a copy to the Company) and direct
the Escrow Agent to instruct
the
Transfer Agent to transfer to each Investor (in such Investor's
name) on a pro rata basis (based upon such Investor’s Investment Amount
specified on Exhibit A attached hereto relative to the aggregate Investment
Amounts of all Investors specified on Exhibit A attached hereto) for no
additional consideration a number of shares of Common Stock as equals:
[($18,900,000 - the actual After-Tax Net Income reported in the 2007 Annual
Report)/$18,900,000] multiplied by 50% of the Underlying Shares which would
be
issuable in accordance with Section 6(a) of the Certificate of Designation
(but
without regard to any restrictions or caps on conversion contained in the
Certificate of Designation or otherwise applicable to such Shares) upon a full
conversion of such Investor’s Shares issued at Closing and then held at the time
of such determination (the “2007
Make
Good Shares”). The Escrow Agent need only rely on the letter of instruction from
Xxxx in this regard and will disregard any contrary instructions. The Escrow
Agent shall be entitled to rely on the calculations provided by Xxxx in
releasing the Escrow Shares for disbursement, with no further responsibility
to
calculate or confirm amounts. If the Company’s audited consolidated financial
statements for the fiscal year ended June 30, 2007 specify that the 2007
Guaranteed ATNI shall have been achieved, no transfer of the 2007 Make Good
Shares shall be required by this Section and Xxxx shall provide written
instruction (with a copy to the Company) to the Escrow Agent to return all
2007
Make Good Shares deposited with the Escrow Agent to the Make Good Pledgor within
7 Business Days after the date which the 2007 Annual Report is filed with the
Commission, provided that Escrow Agent is given notice of the 2007 Annual
Report’s filing and results. Subject to the timing of the Transfer Agent,
transfers of 2007 Make Good Shares required under this Section shall be made
to
Investors within 7 Business Days after the date which the 2007 Annual Report
is
filed with the Commission, provided that Escrow Agent is given notice of the
2007 Annual Report’s filing and results. In the event that the 2007 Guaranteed
ATNI is not achieved based on the Company's consolidated financial statements
for the fiscal year ended June 30, 2007, as filed with the Commission, the
Company has agreed that Xxxx will provide written instruction to the Escrow
Agent and the Company with regard to the distribution of 2007 Make Good Shares,
in an amount to each Investor as set forth on Exhibit
A
attached
hereto. The Escrow Agent need only rely on the letter of instruction from Xxxx
in this regard and will disregard any contrary instructions. The Escrow Agent
shall be entitled to rely on the calculations provided by Xxxx in releasing
the
Escrow Shares for disbursement, with no further responsibility to calculate
or
confirm amounts.
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b. Fiscal
Year Ending June 30, 2008.
The
Make Good Pledgor agrees that if the Company’s After-Tax Net Income for the
fiscal year ended June 30, 2008 reported in the Company’s Annual Report on Form
10-K for the fiscal year ending June 30, 2008, as filed with the Commission
(the
“2008 Annual Report”) is less than $23,500,000 (the “2008 Guaranteed ATNI”),
Xxxx shall provide written instruction (with a copy to the Company) and cause
the Escrow Agent to instruct Transfer Agent to transfer to each Investor (in
such Investor's name) on a pro rata basis (based upon such Investor’s
Investment Amount relative to the aggregate Investment Amount of all Investors
hereunder) for no additional consideration a number of shares of Common Stock
as
equals: [($23,500,000 - the actual After-Tax Net Income reported in the 2008
Annual Report)/$23,500,000] multiplied by 50% of the Underlying Shares which
would be issuable in accordance with Section 6(a) of the Certificate of
Designation (but without regard to any restrictions or caps on conversion
contained in the Certificate of Designation or otherwise applicable to such
Shares) upon a full conversion of such Investor’s Shares issued at Closing and
then held at the time of such determination (the “2008 Make Good Shares”). The
Escrow Agent need only rely on the letter of instruction from Xxxx in this
regard and will disregard any contrary instructions. The Escrow Agent shall
be
entitled to rely on the calculations provided by Xxxx in releasing the Escrow
Shares for disbursement, with no further responsibility to calculate or confirm
amounts. If the 2008 Annual Report indicates that the Company shall have
satisfied the 2008 Guaranteed ATNI test specified above for such period, then
no
transfer to Investors of 2008 Make Good Shares shall be required by this Section
and Xxxx shall provide written instruction (with a copy to the Company) to
the
Escrow Agent to return all 2008 Make Good Shares deposited with the Escrow
Agent
shall be returned to the Make Good Pledgor within 7 Business Days after the
date
which the Company’s 2008 Annual Report is filed with the Commission, provided
that Escrow Agent is given notice of the 2008 Annual Report’s filing and
results. Subject to the timing of the Transfer Agent, transfers of 2008 Make
Good Shares required under this Section shall be made to Investors within 7
Business Days after the date which the Company’s 2008 Annual Report is filed
with the Commission, provided that Escrow Agent is given notice of the 2008
Annual Report’s filing and results. In
the
event that the After-Tax
Net Income
reported
in the Annual Report on Form 10-K of the Company for the fiscal year ending
June
30,
2008,
as
filed with the Commission, is less than the 2008 Guaranteed ATNI,
the
Company has agreed that Xxxx will provide written instruction to the Escrow
Agent and the Company with regard to the distribution of 2008 Make Good Shares,
in an amount to each Investor as set forth on Exhibit
A
attached
hereto. The Escrow Agent need only rely on the letter of instruction from Xxxx
in this regard and will disregard any contrary instructions. The Escrow Agent
shall be entitled to rely on the calculations provided by Xxxx in releasing
the
Escrow Shares for disbursement, with no further responsibility to calculate
or
confirm amounts. In
the
event that the After-Tax
Net Income
reported
in the 2008 Annual Report is equal to or greater than the 2008 Guaranteed
ATNI,
Xxxx
shall provide written instructions to the Escrow Agent and the Company for
the
release of the 2008 Make Good Shares to the Make Good Pledgor or to the
registered holder of such shares who originally deposited such shares with
the
Escrow Agent. Notwithstanding anything to the contrary contained
herein, in the event that the release of the 2007 Make Good Shares or
the 2008 Make Good Shares to the Investors or the Make Good Pledgor is deemed
to
be an expense or deduction from revenues/income of the Company for the
applicable year, as required under GAAP, then such expense or deduction shall
be
excluded for purposes of determining whether or not the 2007 Guaranteed
ATNI or the 2008 Guaranteed ATNI has been achieved by
the Company.
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c.
The
Make Good Pledgor’s obligation to transfer shares of Common Stock to Investors
pursuant to Section 4.11 of the SPA shall not continue to run to the benefit
of
an Investor who shall have transferred or sold all or any portion of its
shares
of Series B Voting Convertible Preferred Stock or resulting Underlying Shares
(the Underlying Shares and Series B Voting Convertible Preferred Stock are
sometimes referred to collectively herein as the “Securities”), and that
Investors shall not have the right to assign its rights to receive all or
any
such shares of Common Stock to other persons in conjunction with negotiated
sales or transfers of any of its Securities. The
2007
Make Good Shares or 2008 Make Good Shares, as applicable, corresponding to
Securities which have been transferred or sold by an Investor, shall, subject
to
the timing of the Transfer Agent, be returned to the Make Good Pledgor within
7
Business Days after the date which the Company’s 2007 Annual Report or 2008
Annual Report, as applicable, is filed with the Commission.
Xxxx
shall provide Escrow Agent with specific notice of those Escrow Shares which
shall be delivered back to the Make Good Pledgor for the above-listed reason.
Escrow Agent will in turn notify the Transfer Agent of such instructions.
Escrow
Agent shall under no circumstances be responsible for instructions it does
not
receive or instructions it receives after Escrow Agent has instructed the
Transfer Agent.
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d. The
Company and Made Good Pledgor covenant and agree, to provide the Escrow Agent
with certified tax identification numbers by furnishing appropriate forms W-9
or
W-8 and such other forms and documents that the Escrow Agent may request,
including appropriate W-9 or W-8 forms for each Investor. The Company and Make
Good Pledgor understand that if such tax reporting documentation is not provided
and certified to the Escrow Agent, the Escrow Agent may be required by the
Internal Revenue Code of 1986, as amended, and the Regulations promulgated
thereunder, to withhold a portion of any interest or other income earned on
the
investment of the Escrow Property.
5.
Duration.
This
Make Good Agreement shall terminate on the sooner of (i) the distribution of
all
the Escrow Shares or (ii) December 31, 2008. The Company agrees to promptly
provide the Escrow Agent written notice of the filing with the Commission of
any
financial statements or reports referenced herein.
6.
Escrow Shares.
If any
Escrow Shares are deliverable to the Investors pursuant to the SPA and in
accordance with this Make Good Agreement, (i) Make Good Pledgor covenants and
agrees to execute all such instruments of transfer (including stock powers
and
assignment documents) as are customarily executed to evidence and consummate
the
transfer of the Escrow Shares from Make Good Pledgor to the Investors, to the
extent not done so in accordance with Section 2, and (ii) following its receipt
of the documents referenced in Section 6(i), the Company and Escrow Agent
covenant and agree to cooperate with the Transfer Agent so that the Transfer
Agent promptly reissues such Escrow Shares in the applicable Investor’s name and
delivers the same as directed by such Investor. Until such time as (if at all)
the Escrow Shares are required to be delivered pursuant to the SPA and in
accordance with this Make Good Agreement, any dividends payable in respect
of
the Escrow Shares and all voting rights applicable to the Escrow Shares shall
be
retained by Make Good Pledgor. Should the Escrow Agent receive dividends or
voting materials, such items shall not be held by the Escrow Agent, but shall
be
passed immediately on to the Make Good Pledgor and shall not be invested or
held
for any time longer than is needed to effectively re-route such items to the
Make Good Pledgor. In
the
event that the Escrow Agent receives a communication requiring the conversion
of
the Escrow Shares to cash or the exchange of the Escrow Shares for that of
an
acquiring company, the Escrow Agent shall solicit and follow the written
instructions of the Make Good Pledgor; provided that the cash or exchanged
shares are instructed to be redeposited into the Escrow Account. Make Good
Pledgor shall be responsible for all taxes resulting from any such conversion
or
exchange.
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7.
Interpleader.
Should
any controversy arise among the parties hereto with respect to this Make Good
Agreement or with respect to the right to receive the Escrow Shares, Escrow
Agent and/or Xxxx shall have the right to consult and hire counsel and/or to
institute an appropriate interpleader action to determine the rights of the
parties. Escrow Agent and/or Xxxx are also each hereby authorized to institute
an appropriate interpleader action upon receipt of a written letter of direction
executed by the parties so directing either Escrow Agent or Xxxx. If Escrow
Agent or Xxxx is directed to institute an appropriate interpleader action,
it
shall institute such action not prior to thirty (30) days after receipt of
such
letter of direction and not later than sixty (60) days after such date. Any
interpleader action instituted in accordance with this Section 7 shall be filed
in any court of competent jurisdiction in the State of New York or the State
of
California, and the Escrow Shares in dispute shall be deposited with the court
and in such event Escrow Agent and Xxxx shall be relieved of and discharged
from
any and all obligations and liabilities under and pursuant to this Make Good
Agreement with respect to the Escrow Shares and any other obligations hereunder.
8. Exculpation
and Indemnification of Escrow Agent and Xxxx.
a. Escrow
Agent is not a party to, and is not bound by or charged with notice of any
agreement out of which this escrow may arise. Escrow Agent acts under this
Make
Good Agreement as a depositary only and is not responsible or liable in any
manner whatsoever for the sufficiency, correctness, genuineness or validity
of
the subject matter of the escrow, or any part thereof, or for the form or
execution of any notice given by any other party hereunder, or for the identity
or authority of any person executing any such notice. Escrow Agent will have
no
duties or responsibilities other than those expressly set forth herein. Escrow
Agent will be under no liability to anyone by reason of any failure on the
part
of any party hereto (other than Escrow Agent) or any maker, endorser or other
signatory of any document to perform such person's or entity's obligations
hereunder or under any such document. Except for this Make Good Agreement and
instructions to Escrow Agent pursuant to the terms of this Make Good Agreement,
Escrow Agent will not be obligated to recognize any agreement between or among
any or all of the persons or entities referred to herein, notwithstanding its
knowledge thereof. Xxxx’x sole obligation under this Make Good Agreement is to
provide written instruction to Escrow Agent (following such time as the Company
files certain periodic financial reports as specified in Section 4 hereof)
directing the distribution of the Escrow Shares. Xxxx will provide such written
instructions upon review of the relevant earnings per share and/or After-Tax
Net
Income amount reported in such periodic financial reports as specified in
Section 4 hereof. Xxxx is not charged with any obligation to conduct any
investigation into the financial reports or make any other investigation related
thereto. In the event of any actual or alleged mistake or fraud of the Company,
its auditors or any other person (other than Xxxx) in connection with such
financial reports of the Company, Xxxx shall have no obligation or liability
to
any party hereunder.
b. Escrow
Agent will not be liable for any action taken or omitted by it, or any action
suffered by it to be taken or omitted, absent gross negligence or willful
misconduct. Escrow Agent may rely conclusively on, and will be protected in
acting upon, any order, notice, demand, certificate, or opinion or advice of
counsel (including counsel chosen by Escrow Agent), statement, instrument,
report or other paper or document (not only as to its due execution and the
validity and effectiveness of its provisions, but also as to the truth and
acceptability of any information therein contained) which is reasonably believed
by Escrow Agent to be genuine and to be signed or presented by the proper person
or persons. The duties and responsibilities of the Escrow Agent hereunder shall
be determined solely by the express provisions of this Make Good Agreement
and
no other or further duties or responsibilities shall be implied, including,
but
not limited to, any obligation under or imposed by any laws of the State of
New
York upon fiduciaries. THE
ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES,
LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN
DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY
RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II)
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS
BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE
FORM
OF ACTION.
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c. The
Company and Make Good Pledgor each hereby, jointly and severally, indemnify
and
hold harmless each of Escrow Agent, Xxxx and any of their principals, partners,
agents, employees and affiliates from
and
against any expenses, including reasonable attorneys' fees and disbursements,
damages or losses suffered by Escrow Agent or Xxxx in connection with any claim
or demand, which, in any way, directly or indirectly, arises out of or relates
to this Make Good Agreement or the services of Escrow Agent or Xxxx hereunder;
except, that if Escrow Agent or Xxxx is guilty of willful misconduct or gross
negligence under this Make Good Agreement, then Escrow Agent or Xxxx, as the
case may be, will bear all losses, damages and expenses arising as a result
of
its own willful misconduct or gross negligence. Promptly after the receipt
by
Escrow Agent or Xxxx of notice of any such demand or claim or the commencement
of any action, suit or proceeding relating to such demand or claim, Escrow
Agent
or Xxxx, as the case may be, will notify the other parties hereto in writing.
For the purposes hereof, the terms "expense" and "loss" will include all amounts
paid or payable to satisfy any such claim or demand, or in settlement of any
such claim, demand, action, suit or proceeding settled with the express written
consent of the parties hereto, and all costs and expenses, including, but not
limited to, reasonable attorneys' fees and disbursements, paid or incurred
in
investigating or defending against any such claim, demand, action, suit or
proceeding. The provisions of this Section 8 shall survive the termination
of
this Make Good Agreement, and the resignation or removal of the Escrow Agent.
9.
Compensation of Escrow Agent.
Escrow
Agent shall be entitled to compensation for its services as stated in the fee
schedule attached hereto as Exhibit
B,
which
compensation shall be paid by the Company. The fee agreed upon for the services
rendered hereunder is intended as full compensation for Escrow Agent's services
as contemplated by this Make Good Agreement; provided,
however,
that in
the event that Escrow Agent renders any material service not contemplated in
this Make Good Agreement, or there is any assignment of interest in the subject
matter of this Make Good Agreement, or any material modification hereof, or
if
any material controversy arises hereunder, or Escrow Agent is made a party
to
any litigation pertaining to this Make Good Agreement, or the subject matter
hereof, then Escrow Agent shall be reasonably compensated by the Company for
such extraordinary services and reimbursed for all costs and expenses, including
reasonable attorney's fees, occasioned by any delay, controversy, litigation
or
event, and the same shall be recoverable from the Company. Prior
to
incurring any costs and/or expenses in connection with the foregoing sentence,
Escrow Agent shall be required to provide written notice to the Company of
such
costs and/or expenses and the relevancy thereof and Escrow Agent shall not
be
permitted to incur any such costs and/or expenses which are not related to
litigation prior to receiving written approval from the Company, which
approval shall not be unreasonably withheld.
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10.
Resignation of Escrow Agent.
At any
time, upon ten (10) days' written notice to the Company, Escrow Agent may resign
and be discharged from its duties as Escrow Agent hereunder. As soon as
practicable after its resignation, Escrow Agent will promptly turn over to
a
successor escrow agent appointed by the Company the Escrow Shares held hereunder
upon presentation of a document appointing the new escrow agent and evidencing
its acceptance thereof. If, by the end of the 10-day period following the giving
of notice of resignation by Escrow Agent, the Company shall have failed to
appoint a successor escrow agent, Escrow Agent may interplead the Escrow Shares
into the registry of any court having jurisdiction.
11.
Records.
Escrow
Agent shall maintain accurate records of all transactions hereunder. Promptly
after the termination of this Make Good Agreement or as may reasonably be
requested by the parties hereto from time to time before such termination,
Escrow Agent shall provide the parties hereto, as the case may be, with a
complete copy of such records, certified by Escrow Agent to be a complete and
accurate account of all such transactions. The authorized representatives of
each of the parties hereto shall have access to such books and records at all
reasonable times during normal business hours upon reasonable notice to Escrow
Agent and at the requesting party’s expense.
12.
Notice.
All
notices, communications and instructions required or desired to be given under
this Make Good Agreement must be in writing and shall be deemed to be duly
given
if sent by registered or certified mail, return receipt requested, or overnight
courier, to the addresses listed on the signature pages hereto.
13.
Execution in Counterparts.
This
Make Good Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
14.
Assignment and Modification.
This
Make Good Agreement and the rights and obligations hereunder of any of the
parties hereto may not be assigned without the prior written consent of the
other parties hereto. Subject to the foregoing, this Make Good Agreement will
be
binding upon and inure to the benefit of each of the parties hereto and their
respective successors and permitted assigns. No other person will acquire or
have any rights under, or by virtue of, this Make Good Agreement. No portion
of
the Escrow Shares shall be subject to interference or control by any creditor
of
any party hereto, or be subject to being taken or reached by any legal or
equitable process in satisfaction of any debt or other liability of any such
party hereto prior to the disbursement thereof to such party hereto in
accordance with the provisions of this Make Good Agreement. This Make Good
Agreement may be amended or modified only in writing signed by all of the
parties hereto.
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15.
Applicable Law.
This
Make Good Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of laws thereof.
16.
Headings.
The
headings contained in this Make Good Agreement are for convenience of reference
only and shall not affect the construction of this Make Good Agreement.
17.
Attorneys' Fees.
If any
action at law or in equity, including an action for declaratory relief, is
brought to enforce or interpret the provisions of this Make Good Agreement,
the
prevailing party shall be entitled to recover reasonable attorneys' fees from
the other party (unless such other party is the Escrow Agent), which fees may
be
set by the court in the trial of such action or may be enforced in a separate
action brought for that purpose, and which fees shall be in addition to any
other relief that may be awarded.
18.
Authorized Signers.
The
Company will execute Exhibit
C-1
and
deliver an executed Exhibit
C-2
to this
Make Good Agreement concurrent with the execution hereof.
19.
Merger or Consolidation.
Any
corporation or association into which the Escrow Agent may be converted or
merged, or with which it may be consolidated, or to which it may sell or
transfer all or substantially all of its corporate trust business and assets
as
a whole or substantially as a whole, or any corporation or association resulting
from any such conversion, sale, merger, consolidation or transfer to which
the
Escrow Agent is a party, shall be and become the successor escrow agent under
this Make Good Escrow Agreement and shall have and succeed to the
rights, powers, duties, immunities and privileges as its predecessor, without
the execution or filing of any instrument or paper or the performance of any
further act.
[REMAINDER
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IN
WITNESS WHEREOF, the parties have duly executed this Make Good Agreement as
of
the date set forth opposite their respective names.
| COMPANY: | ||
| BRONZE MARKETING, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Name: Xxxxxxx X. Xxxxxx |
||
| Title: President | ||
| Address: | ||
| Xx
0, Xxxxx Xxxx, Xxxxxxxx Xxxxxxxxxx
Xxxx,
Xxxxxxxx, Xxxxx, 000000
Attn:
Chairman
Facsimile:
00-000-00000000
|
||
| XX. XXXXXX XXXX: | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxx | |
|
|
||
| Address: | ||
|
Xx
0, Xxxxx Xxxx, Xxxxxxxx Industrial
Park,
Changshu, China, 215534
Facsimile:
00-000-00000000
|
||
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE FOR OTHER PARTIES
FOLLOWS]
| ESCROW AGENT: | ||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Escrow Agent | ||
| |
|
|
| By: | /s/ Xxxx Xxx | |
|
Name: Xxxx Xxx |
||
| Title: Assistant Vice President | ||
| Address: 000 Xxxxxxxx Xxxx,
00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Facsimile:
(000) 000-0000
|
||
|
|
||
| AGENT: | ||
| XXXX CAPITAL PARTNERS, LLC | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxxx | |
|
Name: Xxxxx X. Xxxxxxxx |
||
| Title: Managing Director | ||
|
Address:
c/o Roth Capital Partners, LLC
00 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
949-720-5703
|
||
