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 Xxxxxx X. Xxxxxx & 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 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 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
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 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.
(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.
(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 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 Xxxxxxx X. Xxxxxx 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 Xxxxxx X. Xxxxxx, 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 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 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, Xxxxxx X. Xxxxxx 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 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:
(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 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 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:
If to the Company, to: Bronze Marketing, Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
If to Purchaser, to: Halter Financial Investments, L.P.
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, 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_______________________________
Xxxxxx X. Xxxxxx, President
Purchaser: Halter Financial Investments, L.P.
A Texas Limited Partnership
_________________________________
Xxxxxxx X. Xxxxxx, Chairman
