STOCK PURCHASE AND SHARE EXCHANGE AGREEMENT
THIS STOCK PURCHASE AND SHARE EXCHANGE AGREEMENT (this "AGREEMENT") dated as of
December 9th 2011, is made between EMPIRE GLOBAL CORP, a corporation established
under the laws of Delaware, USA and with its principal place of business
situated at 671 Westburne Dr., Vaughan, Ontario, Canada ("EMPIRE") of the first
part; The Current Shareholders of AVT whose names, particulars and extent of
their respective shareholdings are set out in Appendix 3 hereof
("AVT SHAREHOLDERS") of the second part and AVONTRUST GLOBAL PTE LTD, a
corporation established under the laws of the Republic of Singapore and with
its principal place of business situated at 996 Bendemeer Rd #06-06
Singapore 339944, Singapore ("AVT") of the third part. EMPIRE, AVT Shareholders
and AVT shall collectively hereinafter be referred to as the "PARTIES".
RECITALS
WHEREAS the Parties hereto are desirous that AVT becomes a wholly owned
subsidiary of EMPIRE and in connection therewith, the issuance of a total of
169,995,000 new shares in the capital of EMPIRE to AVT Shareholders.
AND WHEREAS the respective board of directors of AVT and EMPIRE have determined,
subject to the terms and conditions set forth in this Agreement, that the
transaction contemplated hereby is desirable and in the best interests of their
respective stockholders.
WHEREAS, in pursuance of the aforementioned objectives, the current shareholders
of AVT have agreed to sell the entire issued and paid up capital in AVT that
they current own to EMPIRE and EMPIRE has agreed to purchase the same subject to
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing premises, the promises
and covenants set forth herein, and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE OF SUBSIDIARY
1.1 Purchase of Stock. Immediately upon closing, or soon as practicable
thereafter, EMPIRE will purchase and and AVT Shareholders will sell the entire
issued and paid up shares in the capital of AVT ("AVT Stock").
1.2 Acquisition of AVT. Immediately upon the Closing Date of this Agreement or
as soon as practicable thereafter, EMPIRE will acquire AVT and AVT will become a
wholly owned subsidiary of EMPIRE.
1.3 Directors of AVT Subsidiary. The current members of the Board of Directors
of AVT shall continue to remain as Directors of AVT.. Each director shall hold
office until his successor shall have been duly elected and shall have qualified
or until his earlier death, resignation or removal. AVT will nominate at least
two individuals to become members of the Board of Directors of EMPIRE and EMPIRE
shall procure that upon closing or as soon as practicable that one of its
current directors on the board of directors of EMPIRE resigns so that the Board
of Directors of EMPIRE upon closing or as soon as practicable thereafter be
constituted of 3 Directors with AVT having 2 nominees on board together with one
existing director.
1.4 Officers of AVT Subsidiary. The current officers of AVT shall remain the
officers of the AVT Subsidiary.
2
ARTICLE II
SALE OF STOCK
2.1 Sale of Stock. Subject to the terms and conditions herein stated, the AVT
shareholders agree to sell, assign, transfer and deliver to EMPIRE on the
Closing Date (as defined below), and EMPIRE agrees to purchase from the AVT
Shareholders on the Closing Dateof the AVT Stock.
Consideration. In exchange for the delivery of the AVT Stock as set forth in
Article 2.1 hereof, at the Closing Date or as soon as practicable thereafter, in
a manner set forth in the Closing Schedule listed under Appendix 1, the
following actions shall take place, namely that EMPIRE shall pay to AVT
shareholders stated in Appendix 1, consideration in the form of certificates of
common stock of EMPIRE (the "Purchase Price Consideration") in a ratio
("consideration ratio") as attached hereto as Appendix 2 and in the manner
directed by AVT Shareholders.
2.2 Certificates of EMPIRE. Each certificate representing shares of common stock
of EMPIRE to be issued as consideration pursuant to this Agreement shall bear a
legend substantially in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (the "Act"), AND ARE RESTRICTED SECURITIES AS
THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT, AND REQUIRES WRITTEN
RELEASE FROM EITHER ISSUNG COMPANY OR THEIR ATTORNEY PRIOR TO LEGEND REMOVAL.
2.3 Closing. The closing of the Stock Sale (the "Closing") shall take place on
January 6, 2012 Singapore Time, or as soon as practicable thereafter as may be
otherwise agreed to by the parties in writing, and shall take place at such
place and time as the parties shall agree. Such time and date are herein
referred to as the "Closing Date."
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AVT
AVT hereby represents and warrants to EMPIRE as of and at the date of this
Agreement and as of and at the closing date of this agreement as follows:
3.1 Status of Company. AVT is a corporation duly organized, validly existing,
and in good standing under the laws of the Republic of Singapore and to the best
knowledge, information and belief of AVT, it is licensed or qualified as a
foreign corporation in all geographic jurisdictions in which the nature of its
business or the character or ownership of its properties makes such licensing or
qualification necessary.
3.2 Liabilities and Contracts. To the best of its knowledge, AVT has no
outstanding liability or obligation of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether due or to become due). AVT is not
a party to, nor are AVT's assets or securities bound or affected by, any
Contract except for Contracts under which AVT has no further rights or
obligations because the Contract has been fully performed or validly and
irrevocably terminated.
3.3 Ownership of Stock. AVT shareholders are the lawful owners of the AVT Stock
to be sold to EMPIRE or its designees and shall be free and clear of all liens,
encumbrances, restrictions and claims of every kind and character,
(collectively, "Encumbrances") as of the Closing Date. The delivery to EMPIRE of
the AVT Stock pursuant to the provisions of this Agreement will transfer to
EMPIRE valid title thereto, free and clear of any and all Encumbrances the
entire issued and paid up shares in the capital of AVT.
3
3.4 Authorization and Validity of Agreement. AVT has full power and authority
(corporate or otherwise) to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the transactions hereby contemplated.
This Agreement has been duly executed and delivered by AVT and, upon the due
execution of this Agreement by EMPIRE and AVT Shareholders, is a valid and
binding obligation of AVT, enforceable against AVT in accordance with its terms,
except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization and similar laws affecting the
enforcement of creditors' rights generally and to general equitable principles.
3.5 Consents and Approvals; No Violations. The execution and delivery of this
Agreement, any ancillary agreement executed by AVT, and the consummation by AVT
of the sale of the AVT Stock as contemplated herein and the other transactions
contemplated hereby: (a) will not violate the provisions of the Articles of
Incorporation or By laws of AVT, (b) will not violate any statute, rule,
regulation, order or decree of any public body or authority by which AVT, or any
subsidiary is bound or by which any of their respective properties or assets are
bound, (c) will not require any filing with, or permit, consent or approval of,
or the giving of any notice to, any governmental or regulatory body, agency or
authority on or prior to the Closing Date, and (d) will not result in a
violation or breach of, conflict with, constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation, payment or acceleration) under, or result in the creation of any
Encumbrance upon any of the properties or assets of AVT, or any subsidiary
thereof, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, franchise, permit, agreement, lease, franchise agreement or
any other instrument or obligation to which AVT, or any subsidiary thereof is a
party, or by which they or any of their respective properties or assets may be
bound.
3.6 Capital Stock. The authorized and outstanding capital stock of AVT is set
forth in Appendix 3 attached hereto. All such outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. AVT is not
authorized to issue any shares of Preferred Stock. There are no outstanding
subscriptions, options, warrants, rights, calls, commitments, conversion rights,
and rights of exchange, plans or other agreements providing for the purchase,
issuance or sale of any shares of the capital stock of AVT.
3.7 Subsidiaries. AVT has no subsidiaries.
3.8 Number of Users. At the closing, AVT shall have an installed user base of
approximately 7 million Facebook users.
3.9 Indebtedness. At Closing, AVT will have no Indebtedness of any kind
(including contingent obligations, tax assessments and unusual forward or
long-term commitments). For purposes of this Agreement, the term "Indebtedness"
shall mean any obligation for payment by AVT to any third party, including
without limitation, the following: (i) any obligation owed for all or any part
of the purchase price of capital assets, (ii) accounts payable included in
current liabilities outstanding for more than one hundred twenty (120) days and
incurred in respect of property purchased in the ordinary course of business,
(iii) any obligations secured by any lien in respect of property even though the
person owning the property has not assumed or become liable for the payment of
such obligation, (iv) any guarantee with respect to any of the foregoing
indebtedness of another person, and (v) obligations in respect of letters of
credit.
3.10 Litigation.
(a) To the best of its knowledge, there are no (i) actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or threatened
against AVT, (ii) judgments, injunctions, writs, rulings or orders by any
governmental entity against AVT.
(b) No current officer, director, affiliate or person known to AVT to be the
record or beneficial owner of in excess of five percent (5%) of AVT's Common
Stock, or any person known to be an associate of any of the foregoing is a party
adverse to AVT or has a material interest adverse to AVT in any material pending
legal proceeding.
4
3.11 Tax Returns. AVT has filed and shall file in correct form all tax returns
of every nature required to be filed by it and has paid all taxes as shown on
such returns and all assessments, fees and charges received by it to the extent
that such taxes, assessments, fees and charges have become due. AVT shall pay
all taxes which do not require the filing of returns and which are required to
be paid by it. To the extent that tax assets or liabilities have accrued, but
have not become payable, they have been adequately reflected as assets or
liabilities on the books of AVT.
3.12 Accuracy of Information. None of the representations and warranties of AVT
contained herein or in the documents and information furnished by them at any
time to EMPIRE, whether in connection with this Agreement, EMPIRE's due
diligence examination of AVT in connection herewith, or otherwise, contains any
misstatement of fact, or omits any fact necessary to make such statement,
document or information not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EMPIRE
EMPIRE hereby represents and warrants to AVT as of and at the date of this
Agreement and as of and at the closing date of this agreement as follows:
4.1 Status of Company. EMPIRE is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware.
4.2 Liabilities and Contracts. Except as set forth in Appendix 7, to the best of
its knowledge, EMPIRE has no other outstanding liability or obligation of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether due or to become due). EMPIRE is not a party to, nor are EMPIRE's assets
or securities bound or affected by, any Contract except for Contracts under
which EMPIRE has no further rights or obligations because the Contract has been
fully performed or validly and irrevocably terminated.
4.3 Authorization and Validity of Agreement. EMPIRE has full power and authority
(corporate or otherwise) to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by EMPIRE and, upon the due
execution of this Agreement by AVT and AVT Shareholders, is a valid and binding
obligation of EMPIRE, enforceable against EMPIRE in accordance with its terms,
except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization and similar laws affecting the
enforcement of creditors' rights generally and to general equitable principles.
4.4 Consents and Approvals; No Violations. The execution and delivery of this
Agreement, any of the ancillary documents executed by EMPIRE, and the
consummation of the transactions contemplated hereby: (i) will not violate any
statute, rule, regulation, order or decree of any public body or authority by
which EMPIRE is bound or by which any of its properties or assets are bound,
(ii) will not require any filing with, or permit, consent or approval of, or the
giving of any notice to, any governmental or regulatory body, agency or
authority on or prior to the Closing Date, and (iii) will not result in a
violation or breach of, conflict with, constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation, payment or acceleration) under, or result in the creation of any
Encumbrance upon any of the properties or assets of EMPIRE under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, license,
franchise, permit, agreement, lease, franchise agreement or any other instrument
or obligation to which EMPIRE is a party, or by which it or any of its
properties or assets may be bound.
5
4.5 Purchase for Investment. EMPIRE is acquiring the AVT Stock solely for its
own account for investment purposes only and not with a view toward any resale
or distribution thereof. EMPIRE agrees that the AVT Stock may not be sold,
transferred, offered for sale, pledged, hypothecated or otherwise disposed of.
EMPIRE and its assigns or designees have such knowledge and experience in
financial and business matters that they are capable of evaluating the merits
and risks of its purchase of the AVT Stock. EMPIRE confirms that AVT has made
available at or prior to the Closing Date to EMPIRE the opportunity to ask
questions of the officers and management employees of AVT and to acquire
additional information about the business and financial condition of AVT and its
subsidiaries, if any.
4.6 Subsidiaries. Empire hereby confirms and undertakes that each and every
warranty provided by it under the terms of this Agreement shall also mean to
include such statement as they relate to such subsidiary (wholly owned or
otherwise) and such Associated Company whether such subsidiary is active or
dormant. In respect of any such subsidiary, EMPIRE hereby warrants that there
are at the present moment (as well as at closing) no factors or issues, claims
or other matters in relation to any such subsidiary or associated company that
is likely to have any impact whatsoever in relation to the legal standing of
EMPIRE, his officers and stockholders and there are no material circumstances in
relation to such subsidiary or associated company that is likely to have an
adverse effect on EMPIRE, its ability to carry out its obligations under the
terms of this Agreement or have a financial impact on the transaction
contemplated to be carried out pursuant to the terms of this Agreement.
4.7 Available Funds. EMPIRE will have on the Closing Date consideration or
sufficient funds equal to the consideration as set forth in Article 2.2 of this
Agreement to perform all of its obligations under this Agreement, including,
without limitation, to tender payment to AVT of the Purchase Price
Consideration.
4.8 Litigation. To the best of its knowledge, there is no action, suit or
proceeding, at law or in equity by any person or any arbitration or any
administrative or other proceeding before any governmental body or
instrumentality or agency, pending or, to the knowledge of EMPIRE, threatened in
writing, which is reasonably likely to have a material adverse effect on
EMPIRE's ability to consummate the Stock Sale and the other transactions
contemplated by this Agreement.
4.9 Accuracy of Information. None of the representations and warranties of
EMPIRE contained herein or in the documents and information furnished by it at
any time to AVT, whether in connection with this Agreement or otherwise, contain
any misstatement of fact, or omits any fact necessary to make such statement,
document or information not misleading.
4.10 Capital Stock. The authorized and outstanding capital stock of EMPIRE is
set forth in Appendix 4 attached hereto. All such outstanding shares have been
duly authorized and validly issued and are fully paid and non assessable. EMPIRE
is currently authorized to issue 20,000,000 shares of Preferred Stock. EMPIRE
has not issued or offered Preferred Stock to any party. EMPIRE has a stock
option plan in place for 1,000,000 shares which has been fully subscribed for in
2005. Except as set forth in Appendix 7, there are no other outstanding
subscriptions, options, warrants, rights, calls, commitments, conversion rights,
and rights of exchange, plans or other agreements providing for the purchase,
issuance or sale of any shares of the capital stock of EMPIRE.
4.11 Tax Returns. EMPIRE has filed and shall file in correct form all tax
returns of every nature required to be filed by it and pay all taxes as shown on
such returns and all assessments, fees and charges received by it to the extent
that such taxes, assessments, fees and charges have become due. EMPIRE shall pay
all taxes which do not require the filing of returns and which are required to
be paid by it. To the extent that tax assets or liabilities have accrued, but
have not become payable, they have been adequately reflected as assets or
liabilities on the books of EMPIRE.
6
ARTICLE V
CERTAIN AGREEMENTS
5.1 Reasonable Best Efforts. Each of the parties hereto agree to use their
respective best efforts to take, or cause to be taken, all action to do or cause
to be done, and to assist and cooperate with the other party hereto in doing,
all things necessary, proper or advisable to consummate and make effective, in
the most expeditious manner practicable, the transactions contemplated by this
Agreement, including, but not limited to, the following: (i) obtaining of all
necessary waivers, consents and approvals from governmental or regulatory
agencies or authorities and the making of all necessary registrations and
filings and the taking of all reasonable steps as may be necessary to obtain any
approval or waiver from, or to avoid any action or proceeding by, any
governmental agency or authority, (ii) obtaining of all necessary consents,
approvals or waivers from third parties, if any, and (iii) defending of any
lawsuits or any other legal proceedings, whether judicial or administrative,
challenging this Agreement or the consummation of the transactions contemplated
hereby, including, without limitation, seeking to have any temporary restraining
order entered by any court or administrative authority vacated or reversed.
ARTICLE VI
CONDITIONS TO EMPIRE'S OBLIGATIONS
The purchase of the AVT Stock by EMPIRE on the Closing Date is conditioned upon
the satisfaction or waiver, at or prior to the consummation of the Stock Sale,
of the following conditions:
6.1 Truth of Representations and Warranties. The representations and warranties
of AVT contained in this Agreement or in any agreement, document, exhibit or
schedule delivered pursuant hereto shall be true and correct in all respects on
and as of the Closing Date with the same effect as though such representations
and warranties have been made on and as of such date (except to the extent that
any such representation and warranty is stated in this Agreement to be made as
of a specific date, in which case such representation and warranty shall be true
and correct as of such specified date).
6.2 Performance of Agreements. Each and all of the agreements of AVT to be
performed at or prior to the Closing Date pursuant to the terms hereof shall
have been duly performed in all respects, and AVT shall have delivered to EMPIRE
a Closing Certificate substantially in a form attached hereto in Appendix 5,
dated as of the Closing Date, to such effect.
6.3 No Injunction. No court or other government body or public authority shall
have issued an order which shall then be in effect restraining or prohibiting
the completion of the transactions contemplated hereby.
6.4 No Litigation. There shall not be any action, suit or proceeding pending or
threatened that seeks to: (i) make the consummation of the transactions
contemplated hereby illegal or otherwise restrict or prohibit consummation
thereof, or (ii) require the divestiture by EMPIRE of shares of stock or of
any business, assets or property of any of its subsidiaries or affiliates, or
impose any material limitation on the ability of any of them to conduct their
business or to own or exercise control of such assets, properties or stock and
which, in either case, in the reasonable, good faith determination of EMPIRE has
a significant likelihood of having a material adverse effect on EMPIRE.
6.5 Delivery of Books and Records. AVT shall deliver true and complete copies of
all books and records of AVT, including, without limitation, minute books,
certified copies of organizational documents (e.g., Articles of Incorporation,
Bylaws, etc.), accountant's work papers, stock transfer books and ledgers, a
certified shareholder list dated as of a date within five (5) days of the
Closing Date or as soon as practicable thereafter, a current DTC report as
applicable, and all other operational and administrative records.
7
6.6 Additional Documents. AVT will have delivered or caused to deliver to EMPIRE
the documents set forth below in form and substance reasonably satisfactory to
counsel for EMPIRE, to the effect that: (i) medallion guaranteed stock powers
and/or stock transfers for the AVT in a form acceptable to the transfer agent
for AVT and EMPIRE, and (ii) any further document as may be reasonably requested
by counsel to EMPIRE in order to substantiate any of the representations or
warranties of AVT set forth herein.
ARTICLE VII
CONDITIONS TO AVT OBLIGATIONS
The sale of the AVT Stock by AVT on the Closing Date is conditioned upon
satisfaction or waiver, at or prior to the consummation of the Stock Sale, of
the following conditions:
7.1 Truth of Representations and Warranties. The representations and warranties
of EMPIRE contained in this Agreement or in any agreement, document, exhibit or
schedule delivered pursuant hereto shall be true and correct in all material
respects on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date (except to
the extent that any such representation and warranty is stated in this Agreement
to be made as of a specific date, in which case such representation and warranty
shall be true and correct as of such specified date).
7.2 Performance of Agreements. Each and all of the agreements of EMPIRE to be
performed at or prior to the Closing Date pursuant to the terms hereof shall
have been duly performed in all respects, and EMPIRE shall have delivered to AVT
a Closing Certificate substantially in a form attached hereto in Appendix 5,
dated as of the Closing Date, to such effect.
7.3 No Injunction. No court or other government body or public authority shall
have issued an order which shall then be in effect restraining or prohibiting
the completion of the transactions contemplated hereby.
7.4 No Litigation. There shall not be any action, suit or proceeding pending or
threatened that seeks to: (i) make the consummation of the transactions
contemplated hereby illegal or otherwise restrict or prohibit consummation
thereof, or (ii) require the divestiture by AVT of shares of stock or of any
business, assets or property of any of its subsidiaries or affiliates, or impose
any material limitation on the ability of any of them to conduct their business
or to own or exercise control of such assets, properties or stock and which, in
either case, in the reasonable, good faith determination of AVT has a
significant likelihood of having a material adverse effect on AVT.
7.5 Quotation Status and Market Makers. EMPIRE is to have taken all reasonable
steps to achieve "OTC Pink Current Information" quotation status and retain its
quotation symbol OTC:EMGL with the OTC Markets Group Inc and FINRA OTC.BB,
including but not limited to completing all regulatory filings as required under
the Act. EMPIRE is to provide a certificate satisfactory to AVT evidencing that
its market makers and transfer agent are retained and sees no termination of
these relationships within 12 months of the Closing date.
7.6 Delivery of Books and Records. EMPIRE shall deliver true and complete copies
of all books and records of EMPIRE, including, without limitation, minute books,
certified copies of organizational documents (e.g., Articles of Incorporation,
Bylaws, etc.), accountant's work papers, stock transfer books and ledgers,
latest certified shareholder list dated as of a date within five (5) days of the
Closing Date or as soon as practicable thereafter, a current DTC report as
applicable, and all other operational and administrative records.
8
7.7 Previous Conduct. EMPIRE has conducted sufficient annual meetings of
shareholders and directors or members and maintaining minutes of those meetings;
EMPIRE has not co-mingled the company assets with the personal assets of its
shareholders, officers and directors, or conducted an illegal activity or
conducting business in a fraudulent manner. No shareholder guarantees were
offered to EMPIRE.
7.8 SEC Reporting. EMPIRE is responsible for paying all expenses pertaining to
the filing of the annual report on Form 10K for the year ended 2010 and
quarterly reports on Form 10Q for the interim quarterly periods ended March 31,
June 30 and September 30, 2011 to the SEC ("US Securities Exchange Commission").
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
8.1 Survival of Representations. The representations and warranties set forth in
this Agreement shall survive for one year after the Closing Date, except that
the representations and warranties set forth in Section 4.5 hereof shall survive
indefinitely.
8.2 Indemnities.
(a) AVT hereby agrees to indemnify and hold harmless EMPIRE (including its
officers, directors, shareholders, employees, counsel, representatives,
subsidiaries and affiliates, if any), from and against any and all
damages, claims, losses and expenses (including reasonable attorneys'
fees and expenses) (collectively, "Damages") actually suffered or paid
by any of such persons as a result of the breach of this Agreement,
including but not limited to any representation or warranty made by AVT
in this Agreement or in connection with the transactions contemplated in
this Agreement. To the extent that AVT's undertakings as set forth in
this Section 8.2(a) may be unenforceable, AVT shall contribute the
maximum amount that they are permitted to contribute under applicable
law to the payment and satisfaction of all Damages incurred by the
parties entitled to indemnification hereunder.
(b) EMPIRE hereby agrees to indemnify and hold harmless AVT (including its
officers, directors, shareholders, employees, counsel, representatives,
subsidiaries and affiliates, if any), from and against any and all
damages, claims, losses and expenses (including reasonable attorneys'
fees and expenses) (collectively, "Damages") actually suffered or paid
by any of such persons as a result of the breach of this Agreement,
including but not limited to any representation or warranty made by
EMPIRE in this Agreement or in connection with the transactions
contemplated in this Agreement. To the extent that EMPIRE'S undertakings
as set forth in this Section 8.2(b) may be unenforceable, EMPIRE shall
contribute the maximum amount that they are permitted to contribute
under applicable law to the payment and satisfaction of all Damages
incurred by the parties entitled to indemnification hereunder.
9
(c) Any party seeking indemnification under this Article VIII (an
"Indemnified Party") shall give each party from whom indemnification is
being sought (each, an "Indemnifying Party") notice of any matter for
which such Indemnified Party is seeking indemnification, stating the
amount of the Damages, if known, and method of computation thereof, and
containing a reference to the provisions of this Agreement in respect of
which such right of indemnification is claimed or arises. The
obligations of an Indemnifying Party under this Article VIII with
respect to Damages arising from any claims of any third party which are
subject to the indemnification provided for in this Article VIII
(collectively, "Third Party Claims") shall be governed by and contingent
upon the following additional terms and conditions:
(i) Each of the parties shall notify the other within 30 days of
initial notice of any Third Party Claim,
(ii) Each of the parties shall respond within 30 days of the initial
notice of any Third Party Claim,
(iii) Each of the parties shall cooperate with the other to defend any
Third Party Claims and
(iv) Neither party shall enter into a settlement agreement in response
to any Third Party Claim without the written consent of the other
Party.
ARTICLE IX
COVENANTS
9.1 Post-Closing Agreements.
(a) AVT agrees that:
(i) it will comply with the terms and conditions set forth in SEC Rule
144 of the Act in all material respects and manner with the resale
restrictions of shares of EMPIRE issued in connection to this
Agreement, and
(ii) the resale restrictions can be extended for another 180 days
through a Lock up period by mutual written consent between AVT and
EMPIRE.
(b) EMPIRE agrees that:
(i) for a 180-day period ("Lock up period") commencing on the Closing
Date, EMPIRE will execute a Lock-up Agreement in a form as set out
in Appendix 6 not to sell the shares listed in Appendix 6 in the
open market with the prior written consent of AVT, and
(ii) the Lock up period can be extended for another 180 days through
mutual written consent between AVT and EMPIRE.
(c) The Parties hereto agree that save for the 180-day Lock up period
respectively undertaken by AVT and EMPIRE and unless they agree to
extend such restriction, EMPIRE shall take all steps required of it
including but not limited to making such announcement and providing
such notification necessary under any SEC by-law or rule with the
objective that such restriction is lifted.
10
ARTICLE X
MISCELLANEOUS
10.1 Expenses. At and after the Closing Date all expenses related to the
construction, transactions contemplated and execution of this agreement shall be
borne entirely by AVT and undertaken only with AVT's written consent, provided
such costs does not exceed US$5,000 in respect of any the fees, expenses of
legal counsel, financial advisors, consultants, and accountants. Notwithstanding
the obligation to bear all such expenses, the costs of any services or matters
may be advanced by EMPIRE or its agents or assigns and billed in arrears to AVT,
before, at or after the Closing Date provided such costs had been initially
incurred with the written consent of AVT.
10.2 Governing Law; Jurisdiction.
(i) The interpretation and construction of this Agreement, and all
matters relating hereto, shall be governed by the laws of the
Republic of Singapore without giving effect to the principles of
conflicts of laws thereof.
(ii) Each of the parties hereto consents to the jurisdiction of the
Republic of Singapore in any such action or proceeding and waives
any objection to venue laid therein.
(iii) Notwithstanding the generality of the above, any matter relating
to EMPIRE, its stock or capital, its obligations in relation to
the SEC shall be received by and given such weight and import as
foreign law to be proven as a fact in any such proceedings in
Singapore.
(iv) Notwithstanding the above, either party reserves the right and
shall be entitled to commence legal proceedings anywhere in
relation to any matter arising from the terms of this Agreement
in order to redress any breach by the other party or its
shareholders, servants or officers.
10.3 Captions. The Article and Section captions used herein are for reference
purposes only, and shall not in any way affect the meaning or interpretation of
this Agreement.
10.4 Notices. Any notice or other communications required or permitted
hereunder shall be sufficiently given if delivered in person or sent by telecopy
or by registered or certified mail, postage prepaid, addressed as follows:
If to EMPIRE: 671 Westburne Dr.
Vaughan, Ontario, L4K 4Z1
Attn.: Michael Ciavarella, Chairman of the Board
Tel: 905.738.4759 ext. 102
Fax: 905.738.0807
If to AVT Shareholders: c/o Metropolitan Law Corp
101 Cecil Street #14-05 Tong Eng Building
Singapore 069533
Attn.: Lim Eu Gene,
Tel: 65-96613870
Fax: 65-62435001
If to AVT: c/o Metropolitan Law Corp
101 Cecil Street #14-05 Tong Eng Building
Singapore 069533
Attn.: Lim Eu Gene,
Tel: 65-96613870
Fax: 65-62435001
or such other address or number as shall be furnished in writing by any such
party, and such notice or communication shall be deemed to have been given as of
the date so delivered, sent by telecopy or mailed.
11
10.5 Press Releases and Public Notices. The parties shall consult with each
other, and to the extent practicable, agree, before issuing any press release or
otherwise making any public statement with respect to the transactions
contemplated by this Agreement and will not issue any such press release or make
any such public statement prior to such consultation, except as may be required
by law or any listing agreement with the Nasdaq Stock Market or a national
securities exchange.
10.6 Parties in Interest; Assignment. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law or written consent of all the other parties hereto. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
10.7 Counterparts. This Agreement may be executed in two or more counterparts,
all of which taken together shall constitute one instrument. This Agreement may
be executed using the signatures of the parties hereto transmitted via facsimile
machine or other electronic means.
10.8 Entire Agreement. This Agreement, including the exhibits, schedules and
other documents referred to herein which form a part hereof and ancillary
documents hereto contain the entire understanding of the parties hereto with
respect to the subject matter contained herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter other than the Confidentiality Agreement dated
and Letter of Interest dated September 19, 2011.
10.9 Third Party Beneficiaries. Each party hereto intends that this Agreement
shall not benefit or create any right or cause of action in or on behalf of any
person other than the parties hereto.
10.10 Specific Performance. It is agreed that the rights granted to the parties
hereunder are of a special and unique kind and character and that, if there is a
breach by any party of any material provision of this Agreement, the other party
would not have any adequate remedy at law. It is expressly agreed, therefore,
that the rights of the parties hereunder may be enforced by an action for
specific performance and other equitable relief without the parties posting a
bond or having to show that damages would not be an adequate remedy.
10.11 Knowledge of Rights and Duties. The parties have carefully reviewed and
completely read all of the provisions of this Agreement and understand their
rights, duties, obligations and responsibilities hereunder. The parties
acknowledge that they enter into this Agreement of their own free will.
10.12 Further Assurances. Each of the parties hereto shall execute and deliver
any and all additional papers, documents and other assurances, and shall do any
and all acts and things reasonably necessary in connection with the performance
of their obligations hereunder and to carry out the intent of the parties
hereto.
12
10.13 Waiver. The waiver by a party of a breach or threatened breach of this
Agreement by the other parties shall not be construed as a waiver of any
subsequent breach by such other parties.
10.14 Amendments. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is approved by the
parties hereto and agreed to in writing signed by such parties.
10.15 Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
10.16 Severability. If any term, condition, or provision of this Agreement
shall be found to be illegal or unenforceable to any extent for any reason, such
provision shall be modified or deleted so as to make the balance of this
Agreement, as modified, valid and enforceable to the fullest extent permitted by
applicable law.
10.17 Broker and Finder Fees. The parties have not engaged any broker or finder
and will not be required to pay any broker or finder fees to anyone.
10.18 Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision herein is validly asserted
as a defense, the prevailing party shall be entitled to recover reasonable
attorneys' fees, including attorneys' fees for any appeal and costs incurred
in bringing such action or proceeding, in addition to any other available
remedy. A party shall be deemed to have been successful if such action or claim
is concluded pursuant to a court order or final judgment which is not subject to
appeal, a settlement agreement or dismissal of the principal claims.
10.19 Termination and Amendments. This agreement may be terminated or amended
through mutual and written consent by AVT, AVT Shareholders and EMPIRE prior to
Closing Date.
10.20 Rescission. In the event that for any reason whatsoever that one or
both parties fail execute its duties or obligations or deliver shares for
exchange consideration or comply with each of the terms herein contemplated,
either party may deliver a written notice of such deficiency to the other giving
30 days to remedy such deficiency. In the event that the deficiency is not
corrected or remedied, the notifying party may rescind this agreement without
further delay and the shares of AVT shall be returned and transferred back to
AVT Shareholders and the consideration paid by Empire shall be returned to
EMPIRE for cancellation. As a result of such rescission, EMPIRE shall cease to
have any beneficial or legal ownership rights, interests of claims in and over
the AVT stock and AVT shall cease to have any beneficial or legal ownership
rights, interests of claims in and over the EMPIRE stock.
13
IN WITNESS WHEREOF, each of the parties hereto has caused this Stock Purchase
and Share Exchange Agreement to be executed by their respective duly authorized
representatives or by themselves all as of the day and year first above written.
Empire Global Corp.: Avontrust Global Pte. Ltd.:
By: /s/ MICHAEL CIAVARELLA By: /s/ EUGENE LIM
--------------------------- ---------------------------
Print Name: Michael Ciavarella, B.Sc. Print Name: Eugene Lim
Title: Chairman Title: Director
In the presence of: In the presence of:
--------------------- --------------------
NOTARY PUBLIC NOTARY PUBLIC
AVT Shareholders:
By: /s/ KWEK YU MEI, LYDIA By: /s/ EUGENE LIM
--------------------------- ---------------------------
Print Name: Kwek Yu Mei, Lydia Print Name: Eugene Lim
Title: Shareholder Title: Shareholder
In the presence of: In the presence of:
--------------------- --------------------
NOTARY PUBLIC NOTARY PUBLIC
14
APPENDIX 1
CLOSING SCHEDULE
December 9, 2011: Entry into Agreement (EMPIRE and AVT)
December 28, 2011: Exchange of all necessary documents required to be sighted
under the Agreement
January 6, 2012: Closing Date of Agreement
On Closing Date, the following items must be sighted, executed and delivered:
a) Articles of Association of AVT Subsidiary and EMPIRE.
b) Resolution and shareholders approval to issue stock of Empire Global Corp.
under this agreement to AVT and Delivery of shares of EMPIRE to AVT
shareholders as provided and directed by AVT.
c) Amendment of EMPIRE certificate of incorporation to authorize up to
200,000,000 shares and an inclusion of Article 8 on management controls
requiring all transactions to be approved only by the majority of board of
directors of EMPIRE as of the closing date.
d) Resolution and shareholders approval to allow AVT to be acquired by EMPIRE
and Delivery of Issued and Outstanding Shares of AVT to EMPIRE together
with the duly executed Share Transfer certificates.
e) Resolutions to the appointment of two new Directors of EMPIRE decided by
AVT and the resignation of Mr Vic Dominelli so as to form a three member
board of directors of EMPIRE as of the closing date.
f) Announcement and 8-K filing to SEC by EMPIRE that the agreement has been
entered and when it is to be concluded.
g) Lock up agreement representing all EMGL shares cited in Appendix 6.
15
APPENDIX 2
CONSIDERATION RATIO
AVT shall deliver to EMPIRE:
All of the 150,000 issued and outstanding shares of AVT
In exchange at an approximate consideration ratio of 1133.3 EMPIRE stock for
every 1 AVT share, pricing each AVT share at US$7933.33 resulting in the
creation of approximately 169,995,000 new stock in the capital of EMPIRE and
which stock subject to the Restrictions set out herein shall in all other
respects rank pari pasu with the existing issued stock of EMPIRE.
The valuation was derived at approximating each AVT Facebook user at an
approximate value of US$170, a 70% premium from the approximate of the value of
each Facebook user based on Facebook's last valuation by Goldman Sachs on
Jan 2011.
http://www.facebook.com/press/releases.php?p=205070
EMPIRE shall deliver to AVT and/or AVT Shareholders:
169,995,000 shares of common stock of EMPIRE to be issued in such name or names
and in such proportions as AVT Stockholders may direct and authorize as of the
Closing Date or thereafter.
16
APPENDIX 3
CAPITAL STOCK OF AVONTRUST GLOBAL PTE. LTD.
Common Shares
As of Closing Date, there are 150,000 single class shares (stock) in the capital
of AVONTRUST GLOBAL PTE LTD. All such ordinary shares/stock rank pari-passu with
each other and are Common Shares of a single class.
The Shares are currently owned as follows:
SHAREHOLDER NAME: KWEK YU MEI LYDIA LIM EU GENE
ADDRESS: c/o Metropolitan Law Corp. c/o Metropolitan Law Corp.
101 Cecil Street #14-05 Tong 101 Cecil Street #14-05 Tong
Eng Building Singapore 069533. Eng Building Singapore 069533.
NUMBER OF SHARES: 30,000 120,000
Preferred Shares
There are no preferential shares, other forms of stock classes or stock options
in existence.
17
APPENDIX 4
CAPITAL STOCK OF EMPIRE GLOBAL CORP.
Common Shares
As of closing day, there are 18,675,800 singe class stock in EMPIRE GLOBAL CORP.
All stock are pari-passu and are Common Shares of a single class.
Preferred Shares
There are no preferential shares, other forms of stock classes or stock options
in existence.
18
APPENDIX 5
FORM OF CLOSING CERTIFICATE
IN WITNESS WHEREOF, each of the parties EMPIRE and AVT has caused this Stock
Purchase Agreement to be executed by their respective duly authorized
representative, all as of the day and year first above written.
All of the representations and warranties set out in the Articles set out in the
agreement are true and correct as of the date of the certificate.
All covenants set out in the Articles contained in the agreement have been duly
performed.
All conditions precedent set out in the Articles the agreement have been
satisfied.
Empire Global Corp.: Avontrust Global Pte. Ltd.:
By: By:
--------------------------- ---------------------------
Print Name: Michael Ciavarella, B.Sc. Print Name: Eugene Lim
Title: Chairman Title: Director
19
APPENDIX 6
LIST OF EMPIRE SHAREHOLDERS AND CERTIFICATES SUBJECT TO LOCK-UP AGREEMENT
Certificate Number: Shares
------------------- ---------
Cert. # 1850 4,568,700
Cert. # 1769 2,745,100
Cert. # 1830 1,000,000
Cert. # 1831 1,000,000
Cert. # 1832 1,000,000
Cert. # 1833 1,500,000
Cert. # 1834 1,000,000
Cert. # 1763 392,200
Cert. # 1767 117,700
Cert. # 1765 353,000
Cert. # 1823 470,600
Cert. # 1766 491,000
Cert. # 1825 300,400
The 14,938,700 shares stated above shall be subject to the terms under
Clause 9.1 (b) and form of Lock up Agreement as follows:
20
REFER TO FORM OF LOCK-UP AGREEMENT
21
REFER TO FORM OF LOCK-UP AGREEMENT
22
APPENDIX 7
LIABILITIES OF EMPIRE GLOBAL CORP.
As of closing day, there exists no more than US$150,000 in debts payable by
EMPIRE which are all due to Gold Street Capital Corp.
The debts are interest free with no terms of repayment. The debts are
convertible to restricted shares of common stock at a rate of the lowest of:
US$3 for each 1 common shares rounded up to the nearest 1,000 shares, or
In the alternative
An amount equal to US$150,000 in cash
All additional liabilities in excess of this amount including but not limited to
outstanding transfer agent account fees, legal, accounting and auditing costs
associated with filing of SEC reports pursuant to clause 7.8, will be borne and
paid by Mr. Michael Ciavarella.
23