Exhibit 10.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and entered
into as of the 18th day of May 2006, by and between Concept Capital Corporation,
a Utah corporation (the "Company"), and Halter Financial Investments, L.P., a
Texas limited partnership ("Purchaser"), on 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 deliver to Purchaser, 16,225,000 restricted
shares of the Company's common stock, par value $0.001 (the "Shares"), in
consideration of Purchaser's payment to the Company of $275,000 in immediately
available funds at Closing (as defined herein). 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 common stock being conducted by
the Company in reliance upon the exemption from the registration requirements of
the Securities Act of 1933, as amended (the "Act"), afforded by Section 4(2)
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 meeting of
the Company's shareholders described in Section 5(a) herein (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, and the name of Purchaser 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, shareholder
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 cashier's check or bank wire payable to the Company in
the aggregate amount of $275,000; 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") and
state securities regulators 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, subject to approval of its
shareholders in the manner provided sin Section 5(a) herein. 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, or
will have prior to the Closing, 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 and clear of all pledges, liens and
encumbrances. The issuance of the Shares hereunder will not trigger any
outstanding antidilution rights.
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(e) Subject to approval by the Company's shareholders of the proposals
described in Section 5(a) herein, 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 By-laws 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 periodic reports filed by the Company with the SEC (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
the approval by the Company's shareholders and any filings with the SEC
and state securities regulators required in connection with the
transactions contemplated hereby.
(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
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
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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 the Shares to the Purchaser. The
Company has not issued or sold any shares of its capital stock for in
excess of five 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,
or by other action valid under the laws of the jurisdiction in which
the Company is organized, determined that this Agreement and the
transactions contemplated by this Agreement, are advisable and in the
best interests of the Shareholders and has duly authorized this
Agreement and the transactions contemplated by this Agreement and will
recommend that the Company's shareholders approve the same.
(r) As of the date hereof, the capitalization of the Company consists
of 50,000,000 shares of common stock, par value $0.001, of which
4,425,000 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 no options,
warrants or rights issued or outstanding.
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(s) Since March 31, 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.
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
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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.
(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.
Purchaser is aware of the so-called "Xxxx-Worm" letter and the
potential additional restrictions on resale that may apply to shares of
blank check companies, such as the Company, as a result thereof.
(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
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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.
(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 MUST RELY ON
ITS OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE
TRANSACTION, INCLUDING THE MERITS AND RISKS INVOLVED. THE
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SHARES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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) Meeting of the Company's Shareholders. As quickly as practicable
following the execution of this Agreement, the Company shall cause to
be duly called and held an annual or special meeting of its
shareholders for the purpose of authorizing and approving the following
proposals: (i) to authorize and approve this Stock Purchase Agreement;
(ii) to effect a 1-for-14.75 reverse stock split in the issued and
outstanding shares of the Company's common stock immediately following
the issuance of the Shares to Purchaser hereunder; (iii) to authorize
and approve the reincorporation of the Company in Nevada through a
merger of the Company with and into a newly formed Nevada subsidiary
("Concept Nevada") in connection with which the Articles of
Incorporation and Bylaws of Concept Nevada shall become the Articles of
Incorporation and Bylaws of the surviving corporation; (iv) to elect
the persons designated by Purchaser as the new directors of the Company
effective on the effective date of the Company's reincorporation in
Nevada; (v) to terminate sections 4.02 and 4.03 of the Stock Purchase
Agreement dated February 10, 1999, which impose restrictions on the
Company's ability to utilize its funds and effect reverse stock splits;
and (vi) such other proposals as may be reasonably requested by
Purchaser.
(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 other than
the stock split provided for in this Agreement, unless a majority of
the current directors of the Company, as representatives of the
Company's current shareholders, consent to any such reverse stock split
in writing in advance. 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"). 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
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conditions for listing on the NASADAQ Small-Cap 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. 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 to Section 5(c)(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(c)(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 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.
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(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 Acquiror Company at Closing Date. As provided in
Section 5(a) above, the persons designated by Purchaser shall be
nominated for election to the Company's board of directors and shall
commence their terms on the effective date of the Company's
reincorporation in Nevada. To the extent necessary, the current
officers and directors shall resign from their respective positions
with the Company on the effective date of the Company's reincorporation
in Nevada and the new directors of the Company shall appoint persons to
serve as the new officers of the Company.
(g) Special Cash Dividend. The Company shall declare and pay to the
persons who are shareholders of record prior to the date the Shares are
issued to Purchaser hereunder a special cash dividend of $0.10 per
pre-split share for an aggregate dividend of $442,500. The record date
for determination of the shareholders entitled to receive such dividend
shall be prior to the date the Shares are issued to Purchaser hereunder
and the payment date shall be subsequent to the date the Shares are so
issued to Purchaser. Purchaser expressly acknowledges that it will not
be entitled to participate in such dividend and waives any right
thereto. Purchaser also expressly acknowledges that a substantial
portion 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 the 2,070,500 shares (the "Subject
Shares") of restricted stock held by the Company's current officers,
directors and principal shareholders (the "Subject Shareholders"),
which determination shall be made within ten business days of the
written request therefor from the Subject Shareholders, then the
Subject Shareholders 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 Shareholders 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 Shareholders
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
Shareholders.
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:
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(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.
(f) The Company's shareholders shall have approved all proposals
submitted for their consideration pursuant to Section 5(a) hereof.
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:
(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. The Company shall have been furnished with a certificate,
signed by the Chairman of Subscriber and dated as of the date of
closing, to the foregoing effect.
(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.
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(c) The Company shall have been furnished with a certificate, signed by
the chairman 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.
(e) The Company's shareholders shall have approved all proposals
submitted for their consideration pursuant to Section 5(a) hereof.
8. Termination.
(a) This Agreement may be terminated by the board of directors of
either the Company or Purchaser 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
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
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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 board of directors of Purchaser 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 either the Company or Purchaser, if Closing shall not have occurred
by the close of business on August 15, 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.
10. Survival. Except as otherwise expressly provided herein, the
representations, warranties and covenants of the respective parties set forth in
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 Utah.
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
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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:
If to the Company, to: Concept Capital Corporation
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: T. Xxxx Xxxxxx, President
If to Purchaser, to: Halter Financial Investments, L.P.
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Chairman
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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 shareholders, 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: Concept Capital Corporation
A Utah corporation
By /s/ T. Xxxx Xxxxxx
--------------------------------
T. Xxxx Xxxxxx, President
Purchaser: Halter Financial Investments, L.P.
A Texas Limited Partnership
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, Chairman
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