EXHIBIT 2.1
EXECUTION COPY
SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT made and entered into as of June 30, 2016 (this
"Agreement"), is by and among EMPIRE GLOBAL CORP., a corporation organized under
the laws of the State of Delaware (the "Purchaser"), ULISSE GMBH, a company
organized under the laws of Austria (the "Company") and the PERSONS listed on
Schedule 1 hereto (the "Seller"). The Purchaser and the Seller are sometimes
referred to in this Agreement together as the "Parties" or individually as a
"Party".
RECITALS
A. Whereas, the Seller is the registered and beneficial owners of all (or 100%)
of the issued and outstanding shares of capital stock of the Company.
B. Whereas, the Company is the administrator and operator of approximately 107
betting parlors or properties classified as CED locations situated within
the territory of the Republic of Italy (the "Agencies") and the Purchaser
wishes to avail itself of the benefits that can be derived from the
ownership of such Agencies.
C. Whereas, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, all of the foregoing shares of capital
stock of the Company (the "Ulisse Shares"), subject to the terms and
conditions contemplated by this Agreement.
D. Whereas, the respective governing boards of the Parties have determined that
the transactions contemplated by this Agreement are advisable, fair to and
in the best interests of their respective companies and stockholders and
accordingly have approved such transactions, and
E. Whereas, as a condition to the willingness of the Company and Seller to
enter into this Agreement, concurrently with the execution and delivery of
this Agreement, the Purchaser shall appoint Franco Salvagni as member of
"Board of directors" and Vice President of Land Based operations of the
Purchaser.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
I. DEFINITIONS
"Actions" means any claim, demand, charge, complaint, action, suit,
proceeding, hearing, audit, investigation, interference, opposition,
re-examination, concurrent use, cancellation or other dispute resolution or
proceeding, whether judicial, administrative or arbitrative, of any Person or
Governmental Authority;
"Affiliate" means with respect to any Person, a Person that directly or
indirectly controls, is controlled by, or is under common control with, any such
Person. The term "control" (including the terms "controlled by" or "under common
control with") means, the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through ownership of voting securities, membership interests, by
contract or otherwise;
"ADM" means the Agenzie delle Dogane e dei Monopoli of the Republic
of Italy;
"Agreement" means this share purchase agreement, including all schedules,
and all amendments or restatements, as permitted, and references to "Article" or
"Section" mean the specified Article or Section of this Agreement;
"Agreement Effective Date" has the meaning set forth in Section 3.1;
"Agencies" means sports betting and gaming parlors classified by the ADM as
CTD locations;
"Claims Notice" has the meaning set forth in Section 6.2;
"Closing" has the meaning set forth in Section 3.2;
"Closing Date" has the meaning set forth in Section 3.2;
"Company" means Ulisse Gmbh, a company organized and continued under the
laws of Austria and assigned registration number FN427806 b in the Register of
Companies of Austria;
"Consent" means any consent, approval, authorization, qualification, waiver,
registration or notification required to be obtained from, filed with or
delivered to a Governmental Authority or any other Person in connection with the
consummation of the transactions provided for in this Agreement;
"CED Locations" means betting parlors or properties classified as Centro
Elaborazione Dati in Italy by the ADM;
"EBIT" means the earnings before interest and taxes of the Company;
"Encumbrances" means pledges, liens, charges, security interests, leases,
mortgages, options, adverse claims or encumbrances of any kind or character
whatsoever;
"Exchange Shares" means the shares of common stock, par value $0.001 per
share, of Empire Global Corp.;
"Expiration Date" has the meaning set forth in Section 6.3(a);
"Financial Statements" means the audited financial statements of the
Company prepared in accordance with the international financial accounting
standards for the fiscal years ended December 31, 2014 and December 31, 2015 and
completed interim periods prior to the Closing Date;
"General Enforceability Exceptions" has the meaning set forth in
Section 4.1;
"Governmental Authority" means any government or political subdivision or
regulatory authority, whether federal, state, local or foreign, or any agency or
instrumentality of any such government or political subdivision or regulatory
authority, or any federal state, local or foreign court or arbitrator;
"Hold Period" means the one year period from the Closing Date;
"ICC" has the meaning set forth in Section 8.14;
"IFRS" means the international financial reporting standards in effect and
applicable to the preparation of financial statements;
"Indemnified Party" has the meaning set forth in Section 6.2;
"Indemnifying Party" has the meaning set forth in Section 6.2;
"Intellectual Property" means intellectual property rights, whether
registered or not, owned, used or held by the Company, including technology,
domain names, copyrights, trade-marks, trade-names, business names and other
indicia of origin, including those listed on Schedule 3;
"Interested Person" means any person or former officer, director,
shareholder or employee of a corporation or any person with which a corporation
does not deal at arm's length;
"Knowledge of the Seller" means the knowledge obtained or obtainable after
due inquiry by any officer or director of the Seller;
"Law" means any law, common law, statute, code, ordinance, regulation or
other requirement of any Governmental Authority;
"Liability Claim" has the meaning set forth in Section 6.2;
"Liens" has the meaning set forth in Section 2.1;
"Loss" or "Losses" means all losses, liabilities, claims, damages,
penalties, fines, judgments, awards, settlements, taxes, costs, fees, expenses
(including but not limited to reasonable attorneys' fees) and disbursements and,
with respect to any Liability Claim asserted by the Purchaser, diminution in
value of the Company;
"Order" means any order, judgment, injunction, award, decree, ruling,
charge or writ of any Governmental Authority;
"Party" and "Parties" have the meaning set forth in the Preamble;
"Person" means any individual, sole proprietorship, partnership, firm,
entity, unincorporated association, unincorporated syndicate, unincorporated
organization, trust, body corporate, Governmental Authority, and where the
context requires any of the foregoing when they are acting as trustee, executor,
administrator or other legal representative;
"Purchase Price" has the meaning of the purchase price to be paid by the
Purchaser as set forth in Section 2.2;
"Purchaser" means Empire Global Corp., a corporation organised under the
laws of the State of Delaware;
"Released Parties" has the meaning set forth in Section 8.1;
"Restricted Business" means any firm, partnership, joint venture,
corporation and/or any other entity and/or person, and/or any licensee of such
entity, that develops, markets, manufactures, distributes, and/or sells any of
the products and services provided by the Purchaser.
"Seller" means the Persons listed in Schedule 1;
"SEC" means the United States Securities and Exchange Commission;
"Ulisse Shares" means the shares of Ulisse Gmbh.
"Tender Procedure" means the new tender for land based agencies and corners
described in the Stability Law 2016 of Italian Government derived in
December 2015
II. PURCHASE AND SALE
2.1 Purchase and Sale of the Ulisse Shares. On the Closing Date, the Purchaser
shall purchase (or cause to be purchased) from the Seller, and the Seller
shall sell, transfer, assign, convey and deliver to the Purchaser, all of
the Ulisse Shares, free and clear of any mortgage, pledge, hypothecation,
rights of others, claim, security interest, Encumbrance, title defect,
title retention agreement, voting trust agreement, interest, option, lien,
charge or similar restrictions or limitations (collectively, "Liens"). In
order to consummate the foregoing purchase and sale, (a) the Purchaser and
Seller (or their respective counsel) will confirm that all requirements for
Closing have been satisfied; and (b) subject to such confirmation and
immediately thereafter (i) the Purchaser will cause the Purchase Price to
be paid as set forth in Section 2.2 below and provide the Seller with
confirmation that such payment has been made, and (ii) the Seller will give
an irrevocable and unconditional order to the Seller's legal counsel to
transfer the Ulisse Shares to the Purchaser's legal counsel and provide the
Purchaser with confirmation that such notice has been given. The Purchaser
will also give an irrevocable and unconditional order to the Purchaser's
legal counsel to accept the Ulisse Shares.
2.2 Purchase Price. In full consideration for the transfer of the Ulisse Shares
on a debt free basis, on the Closing Date, the Purchaser shall pay (or cause
to be paid) to the Seller the sum of ONE MILLION, FIVE HUNDRED THOUSAND
EURO (EUR 1,500,000.00) (the "Purchase Price").
The Purchase Price shall be paid by delivery of a certified cheque or bank
draft or by a wire transfer of immediately available funds, except that on
the Closing Date the Purchaser may satisfy the payment in full by the
issuance of an amount of shares of common stock of the Purchaser at a fixed
price of US $1.00 per share issued to the Seller in proportions as
designated by the Seller in writing equal to the Purchase Price in full
(the "Exchange Shares").
2.3 Adjustment of the Purchase Price. The Purchase Price shall be adjusted at
such time as the Agencies are assigned a new ADM license number obtained by
the Purchaser at the closing of the ADM license tender auction (the
"Adjustment Date") to equal two times EBIT calculated on a pro rata basis
from the Closing Date to the Adjustment Date (the "Adjusted Purchase
Price").
2.4 Procedure Upon Adjustment of the Purchase Price. Should an adjustment of
the Purchase Price be required, the Purchaser may satisfy the Adjusted
Purchase Price by the issuance to, or claw back from the Seller, of an
amount of shares of common stock of the Purchaser at a fixed price of US
$1.00 per share in proportions as designated in writing by the Seller
within thirty (30) days from the Adjustment Date equal to the adjustment
payment amount in full. Notwithstanding the immediately preceding sentence,
if the Seller does not provide instructions in writing within the
prescribed period, the Purchaser shall issue to, or claw back from the
Seller the adjustment payment in proportions at the Purchasers sole
discretion.
2.5 Repurchase Option. Upon completion of the ADM license tender auction and at
such time as the rights acquired by the Purchaser are assigned to the
Agencies, the Seller may exercise the option to resell to the Purchaser and
the Purchaser shall repurchase from the Seller an amount of Exchange Shares
equal to the 50% of the Purchase Price at a fixed price of US $1.00 per
share (the "Repurchase Option"). The Repurchase Option shall expire 12
months after the Closing Date.
III. CLOSING DELIVERIES AND OTHER ACTIONS
3.1 Conditions to Closing. This Agreement shall become effective and binding
upon each of the Parties on the date and time (the "Agreement Effective
Date") immediately following the execution and delivery of this
fully-executed Agreement by each Party, it being understood that the
execution and delivery of the signature pages by each Party hereto shall
represent an irrevocable acknowledgement by such Party that each such
condition shall have been met. Upon and after the Agreement Effective Date,
the terms and conditions herein may only be amended, modified, waived, or
otherwise supplemented as set forth in Section 8 hereof.
3.2 Time and Place of Closing. The consummation of the transactions
contemplated hereby (the "Closing") shall take place concurrently with the
payment of the Purchase Price at the office of Ulisse Gmbh., Salurnerstrasse
12 - 6020, Innsbruck, Austria, or at such other time or place as the
Parties may agree in writing. Notwithstanding the foregoing, the Parties
may agree to conduct the Closing remotely via electronic exchange of
documents, signatures and consideration. For all purposes, the Closing
shall be deemed to take place at 00:01 a.m. (Austrian time) on July 1, 2016
(the "Closing Date").
3.3 Deliveries by the Seller. At the Closing, the Seller shall deliver, or
cause to be delivered, to the Purchaser the following items:
(a) evidence satisfactory to the Purchaser that the irrevocable and
unconditional order to transfer the Ulisse Shares have been accepted by
its legal counsel as contemplated by Section 2.1;
(b) a waiver, in form and substance acceptable to the Purchaser, of the
Seller's pre-emptive rights, if any, in the Company's Articles of
Association;
(c) the audited financial statements of the Company prepared in accordance
with IFRS for the fiscal years ended December 31, 2014 and December 31,
2015 and completed Interim periods prior to the Closing Date; and
(d) such other documents and instruments as the Purchaser reasonably
requests to consummate the transactions contemplated hereby.
3.4 Deliveries by the Purchaser. At the Closing, the Purchaser shall deliver,
or cause to be delivered, to the Seller the following items:
(a) the Purchase Price, payable in accordance with Section 2.2; and
(b) such other documents and instruments as the Seller reasonably requests
to consummate the transactions contemplated hereby.
IV. REPRESENTATIONS AND WARRANTIES RELATING TO THE SELLER
This Agreement has been duly authorized, executed and delivered by the Seller
and, upon due authorization, execution and delivery by each Person, will
constitute the valid and legally binding agreement of the Seller enforceable in
accordance with its terms against the Seller, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
The Seller hereby represents and warrants to the Purchaser, as of the date
hereof, as follows:
4.1 Authority, Validity and Effect. The Seller has all requisite authority and
full legal capacity to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated herein. Such
Seller has full power and authority to execute, deliver and perform this
Agreement. This Agreement has been duly executed and delivered by the
Seller pursuant to all necessary authorization and constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in
accordance with its terms, subject to (a) laws of general application
relating to bankruptcy, insolvency and the relief of debtors and (b) laws
of general application relating to bankruptcy, insolvency, the relief of
debtors, fraudulent transfer, reorganization, moratorium and other similar
laws of general applicability relating to, or principles of equity
affecting creditors' rights, the relief of debtors and remedies generally
(the "General Enforceability Exceptions"). No further action on the part of
the Seller is or will be required in connection with the authorization of
the transactions contemplated by this Agreement.
4.2 Title to Shares. The Seller (a) is the record and beneficial owner of the
Ulisse Shares, (b) has full power, right and authority, and any approval
required by applicable Law, to make and enter into this Agreement and to
sell, assign, transfer and deliver the Ulisse Shares to the Purchaser, and
(c) has good and valid title to the Ulisse Shares, free and clear of all
Liens.
4.3 No Conflict. Neither the execution of this Agreement, nor the performance
by the Seller of its obligations hereunder will (a) violate or conflict
with the Articles of Association (or equivalent document) or the Bylaws (or
equivalent document) of the Seller, the Company, or Operating Agreement or
any applicable Law or Order, (b) violate, conflict with or result in a
breach or termination of, or otherwise give any Person additional rights or
compensation under, or the right to terminate or accelerate, or constitute
(with notice or lapse of time, or both) a default under the terms of any
note, deed, mortgage or other contract to which the Seller or the Company
is a party or by which any of their respective assets or properties are
bound, or (c) result in the creation or imposition of any Lien (except as
created by the Purchaser or any of its Affiliates) with respect to, or
otherwise have an adverse effect upon, the Ulisse Shares or any of the
assets or properties of the Seller or the Company.
4.4 Consents. No Consent of any third party or Governmental Authority is
required in connection with the execution and delivery by the Seller of
this Agreement or the consummation of the transactions contemplated hereby.
4.5 Agencies, Property and Assets.
(a) Schedule 3 sets out a true, correct and complete list of:
(i) all of the Agencies owned, administrated, operated or used by
the Company; and
(ii) all licenses or similar agreements or arrangements to which the
Company is a party, either as licensee or licensor, and all
other Property with respect to the Agencies; and
(iii) all of the Assets of the Company.
(b) the Company is the exclusive operator of the Agencies;
(c) the Company is subject to a 50% revenue sharing agreement with the
existing licensor until the completion of the 2016 ADM license tender
auction in Italy after which the Company shall have no further
obligation to such licensor;
(d) There is no claim existing or, to the Knowledge of the Seller,
threatened, alleging adverse ownership, invalidity or other opposition
to, or any conflict with, any of the Agencies, Property or Assets. In
the past five (5) years, the Company has not received written notice of
any alleged infringement or misappropriation from any Person with
respect to the Agencies, Property or Assets. During such period, to the
Seller's knowledge, the Company has not infringed and is not currently
infringing on any rights of any other Person; and
(e) The Agencies, Property or Assets are sufficient to conduct the business
as presently conducted, all software licenses to which the Company is a
party are in good standing, binding and enforceable in accordance with
their respective terms, and no material default exists on the part of
the Company thereunder.
4.6 Conduct of Business. The Seller have maintained the business of the Company
in good standing and have preserved the relationships with all principal
suppliers and customers in the normal course of business.
4.7 Absence of Changes and Unusual Transactions. Since December 31, 2015:
(a) there has not been any material adverse change in the financial
condition or operations;
(b) there has been no declaration or payment of any dividend, payment of
management bonuses or any other such distribution by the Company that is
out of the ordinary course of business;
(c) the Company has not transferred, assigned, sold or otherwise disposed of
any of the material assets shown or reflected on the balance sheet
forming part of the Company's Financial Statements or cancelled any
material debts or entitlements except, in each case, in the ordinary
course of business;
(d) the Company has not created any Encumbrance affecting any of its assets
or property; and
(e) the Company has not authorized, agreed or otherwise become committed to
do any of the foregoing.
4.8 Non-Arm's Length Transactions. Except as disclosed in Schedule 2 (if any):
(a) no Seller or Interested Person of the Company is indebted to the
Company, nor is the Company indebted to any Interested Person of the
Company;
(b) the Company is not a party to any contract with any Interested Person
other than contracts of employment, and the Company shall have no
unsatisfied obligations, past or future, to any current Interested
Person of the Company except under any continuing contracts of
employment;
(c) no Interested Person owns, directly or indirectly, in whole or in part,
any property that the Company uses in the operation of its business;
(d) no Interested Person has any cause of action or other claim against the
Company in connection with its business; and
(e) since the December 31, 2014, no payment has been made to any Interested
Person, other than in the ordinary course of business.
4.9 Investor Status. Each Seller is an accredited investor as such term is
defined under Regulation D promulgated under the Securities Act; and, if
there should be any material change in such status prior to the Closing,
Sellers will immediately advise the Purchaser of such change in accredited
investor status.
4.10 Litigation. The Seller has not received notice of any Order or Action
and, to the Knowledge of the Seller, there is no Order or Action pending or
threatened against the Seller that would give any Person the right to
enjoin or rescind the transactions contemplated by this Agreement or
otherwise prevent the Seller from complying with the terms of this
Agreement.
4.11 Brokers. No Person has acted directly or indirectly as a broker, finder
or financial advisor for the Seller in connection with the negotiations
relating to the transactions contemplated by this Agreement for which the
Purchaser or the Company will become obligated to pay a fee or commission.
V. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller, as of the date
hereof, as follows:
5.1 Existence and Good Standing. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, USA.
5.2 Power. The Purchaser has the power and authority to execute, deliver and
perform fully its respective obligations under this Agreement.
5.3 Validity and Enforceability. The Purchaser has the capacity to execute,
deliver and perform its obligations under this Agreement. This Agreement
has been duly executed and delivered by the Purchaser and, assuming due
authorization, execution and delivery by the Seller, represents the legal,
valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to General Enforceability
Exceptions. No further action on the part of the Purchaser is or will be
required in connection with the authorization of the transactions
contemplated by this Agreement.
5.4 Offering Exempt from Registration, Purchasers Reliance. The Purchaser
advises that:
(a) the Exchange Shares have not been registered under the Securities Act or
under the laws of any state on the basis that the issuance thereof is
exempt from such registration;
(b) as a result of such lack of registration, none of the Exchange Shares
may be resold or otherwise transferred or disposed without registration
pursuant to or an exemption therefrom is available under the Securities
Act and such state securities laws. Notwithstanding the immediately
preceding sentence, the Exchange Shares may not be sold in any event
during the Hold Period;
(c) the Purchasers' reliance on the availability of such exemption is, in
part, based upon the accuracy and truthfulness of the Seller'
representations contained in this Agreement; and
(d) in furtherance of the provisions of this paragraph 5.4, all of the
certificate(s) representing the Exchange Shares shall bear a
restrictive legend substantially in the following form:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE,
AND MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER OF THESE SHARES TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND SUCH STATE SECURITIES LAWS"
5.5 No Guarantees. It has never been represented, guaranteed or warranted
expressly or by implication, that:
(a) any gain will be realized by the Seller from the Seller' investment in
the Exchange Shares;
(b) except for the Hold Period, there will be any approximate or exact
length of time that the Seller will be required to remain as a holder of
the Exchange Shares; or
(c) the past performance or experience on the part of the Purchaser, its
predecessors or of any other person, will in any way indicate any future
results of the Purchaser.
5.6 No Conflict. Neither the execution of this Agreement, nor the performance
by the Purchaser of its obligations hereunder will violate or conflict with
the Purchaser's Certificate of Organization or any Law or Order.
5.7 Consents. No Consent of any third party or Governmental Authority is
required in connection with the execution and delivery by the Purchaser of
this Agreement or the consummation of the transactions contemplated hereby.
5.8 Brokers. No Person has acted directly or indirectly as a broker, finder or
financial advisor for the Purchaser in connection with the negotiations
relating to the transactions contemplated by this Agreement for which the
Seller will become obligated to pay a fee or commission.
VI. REMEDIES
6.1 General Indemnification Obligation.
(a) Seller's Indemnification Obligations. The Seller shall indemnify and
hold harmless the Purchaser from and against any and all Losses
incurred or suffered by the Purchaser based upon, arising out of, or
otherwise in respect of (i) any inaccuracies in or any breach of any
representation or warranty of the Seller contained in this Agreement or
(ii) any breach of any covenant or agreement of the Seller contained in
this Agreement.
(b) Purchaser's Indemnification Obligations. The Purchaser shall indemnify
and hold harmless the Seller from and against any and all Losses
incurred or suffered by the Seller based upon, arising out of, or
otherwise in respect of (i) any inaccuracies in or any breach of any
representation or warranty of the Purchaser contained in this
Agreement, or (ii) any breach of any covenant or agreement of the
Purchaser contained in this Agreement.
6.2 Notice of Asserted Liability. As soon as is reasonably practicable after
the Seller, on the one hand, or the Purchaser, on the other hand, becomes
aware of any claim that such Party has under Section 6.1 that may result in
a Loss for which such Party is entitled to indemnification hereunder (a
"Liability Claim"), such Party (the "Indemnified Party") shall give notice
of such Liability Claim (a "Claims Notice") to the other Party (the
"Indemnifying Party"). A Claims Notice must describe the Liability Claim in
reasonable detail and must indicate the amount (estimated, if necessary and
to the extent feasible) of the Loss that has been or may be suffered by the
Indemnified Party. No delay in or failure to give a Claims Notice by the
Indemnified Party to the Indemnifying Party pursuant to this Section 6.2
will adversely affect any of the other rights or remedies that the
Indemnified Party has under this Agreement or alter or relieve the
Indemnifying Party of its obligation to indemnify the Indemnified Party
except to the extent that such delay or failure has prejudiced the
Indemnifying Party.
6.3 Survival; Limitations.
(a) The representations and warranties of the Parties contained in this
Agreement will survive for a period of 48 months following the Closing
(the "Expiration Date"); provided that, any Claims pending on the
Expiration Date for which notice has been given in accordance with
Section 6.2 on or before the Expiration Date may continue to be
asserted and indemnified against until finally resolved.
(b) Notwithstanding anything to the contrary contained in this Article VI,
the Seller will not have any liability pursuant to Section 6.1(a)(i) in
excess of the Purchase Price.
6.4 Specific Performance. Each Party's obligation under this Agreement is
unique. If any Party should breach its covenants under this Agreement, each
of the Parties acknowledge that it would be extremely impracticable to
measure the resulting damages; accordingly, the non-breaching Party or
Parties, in addition to any other available rights or remedies, may sue in
equity for specific performance, and each Party expressly waives the
defense that a remedy in damages will be adequate.
6.5 Adjustment to the Purchase Price. For U.S. Tax purposes, any
indemnification payments made pursuant to this Article VI shall be treated
as an adjustment to the Purchase Price, unless otherwise required by
applicable Law.
6.6 Exclusive Remedy. Except as may be required to enforce post-Closing
covenants contained in this Agreement, after the Closing Date the
indemnification rights in this Article VI are and shall be the sole and
exclusive remedies of the Parties with respect to this Agreement and the
transactions contemplated hereby; provided that, this sentence shall not be
deemed a waiver by any Party of its right to seek specific performance or
injunctive relief in the case of another Party's failure to comply with the
post-Closing covenants made by such other Party; and provided, further,
that this sentence shall not be deemed a waiver by any Party of its right
to pursue claims for fraud, intentional or knowing misrepresentation, or
active concealment, all of which shall be claims that are outside the terms
and conditions of this Agreement. In no event shall any Party be entitled
to a duplicative recovery with respect to any particular Loss.
VII. TERMINATION AND ABANDONMENT
7.1 Methods of Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time before the
Closing:
(a) By the mutual written consent of the parties;
(b) By Purchaser, upon a material breach of any representation, warranty,
covenant or agreement on the part of the Company or Seller set forth in
this Agreement, or if any representation or warranty of the Company or
Seller shall become untrue, in either case such that any of the
conditions set forth in Section 3.3 hereof would not be satisfied, and
such breach shall, if capable of cure, has not been cured within ten
(10) days after receipt by the party in breach of a notice from the
non-breaching party setting forth in detail the nature of such breach;
(c) By Seller, upon a material breach of any representation, warranty,
covenant or agreement on the part of Purchaser set forth in this
Agreement, or, if any representation or warranty of Purchaser and the
shareholders of Purchaser shall become untrue, in either case such that
any of the conditions set forth in Section 3.4 hereof would not be
satisfied, and such breach shall, if capable of cure, not have been
cured within ten (10) days after receipt by the party in breach of a
written notice from the non-breaching party setting forth in detail the
nature of such breach; and
(d) By any party if a court of competent jurisdiction or governmental,
regulatory or administrative agency or commission shall have issued an
order, decree or ruling or taken any other action (which order, decree
or ruling the parties hereto shall use its best efforts to lift), which
permanently restrains, enjoins or otherwise prohibits the transactions
contemplated by this Agreement.
7.2 Procedure Upon Termination. In the event of termination and abandonment of
this Agreement by a party pursuant to Section 7.1, written notice thereof
shall forthwith be given by the terminating party to the other parties and
this Agreement shall terminate and the transactions contemplated hereby
shall be abandoned, without further action. If this Agreement is terminated
as provided herein, no party to this Agreement shall have any liability or
further obligation to any other party to this Agreement; provided, however,
that no termination of this Agreement pursuant to this Article VII shall
relieve any party of liability for a breach of any provision of this
Agreement occurring before such termination.
VIII. MISCELLANEOUS
8.1 Seller's Release. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Seller on its own behalf,
and on behalf of its Affiliates, hereby fully waives, releases, remises,
acquits and discharges forever, irrevocably and unconditionally (a) the
Company, and (b) all of its present and former management board members
(collectively, the "Released Parties") from, against and with respect to
any and all Actions or Losses, which the Seller or any of such Affiliates
ever had or has as of the Closing Date against any of the Released Parties
for or by any reason or matter whatsoever, except for trade payables
incurred in the ordinary course of business.
8.2 Protective Agreements, Non-Competition. As a material inducement and
consideration for Purchaser to enter into this Agreement, for a period of
five (5) years following the Closing Date (the "Restricted Period"), each
of the Sellers shall not, directly or indirectly, participate or engage, or
assist (whether as owner, partner, member, officer, director, employee,
consultant, advisor, investor, lender or otherwise, except as the holder of
not more than 1% of the outstanding capital stock of a publicly-held
company) any other Person in engaging in any Restricted Business anywhere
in the world in which the Purchaser is doing business or has specific,
publically announced plans to do business as of the Closing Date
("Restricted Territory").
8.3 No Personal Liability. The Parties agree that the application of this
Agreement is limited to its express terms and to the Parties hereto and,
accordingly, neither Party, nor any of their Affiliates, may bring an
Action (for indemnification or otherwise) against any individual in his or
her personal capacity as a result of the use of his or her knowledge in
confirming or qualifying any of the representations or warranties contained
in this Agreement.
8.4 Press Release and Announcements. Concurrently with the entry into and the
Closing of this Agreement, the Parties will collaboratively prepare and
release a joint press release regarding this Agreement and the transactions
contemplated hereby, and the Purchaser's may file a Form 8-K with the SEC
regarding the same. Except for such joint press release and Form 8-K,
neither Party will issue (or cause to be issued) any press release or other
public announcement relating to the existence or subject matter of this
Agreement or the transactions contemplated hereby, except as required by
applicable Law or with the prior written consent of the other Party, which
consent will not be unreasonably withheld, conditioned or delayed.
8.5 Further Assurances. From and after the Closing Date, at the request of the
Purchaser, the Seller shall execute and deliver or cause to be executed and
delivered to the Purchaser or the Company, such instruments and other
documents as the Purchaser may reasonably request in order to implement the
transactions contemplated by this Agreement.
8.6 Expenses. Each of the Parties shall bear their respective expenses incurred
or to be incurred in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
8.7 No Assignment; No Third Party Beneficiaries. The rights and obligations of
the Seller under this Agreement may not be assigned without the prior
written consent of the Purchaser. The Purchaser may, without the consent of
the Seller, assign its rights and obligations under this Agreement. Nothing
in this Agreement shall create or be deemed to create any third party
beneficiary rights in any Person not a Party hereto.
8.8 Headings. The headings contained in this Agreement are included for
purposes of convenience only, and do not affect the meaning or
interpretation of this Agreement.
8.9 Integration, Modification, Amendments and Waiver. This Agreement
constitutes the entire agreement among the Parties with respect to the
subject matter hereof and supersedes all prior understandings of the
Parties with respect to such subject matter. No supplement, modification or
amendment of this Agreement will be binding unless executed in writing by
the Parties. No waiver of any of the provisions of this Agreement will be
deemed to be or will constitute a continuing waiver. No waiver will be
binding unless executed in writing by the Party making the waiver.
8.10 Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any
of the provisions of this Agreement. Any reference to any federal, state,
local or foreign statute or Law will be deemed also to refer to all rules
and regulations promulgated thereunder, unless the context requires
otherwise. The word "including" shall mean including without limitation.
Any reference to the singular in this Agreement shall also include the
plural and vice versa. This Agreement has been drafted, negotiated and
executed in the English language. If this Agreement is translated into
another language, the English language text shall govern and prevail for
all purposes.
8.11 Binding Agreement; Severability. This Agreement and all terms,
provisions and conditions hereof shall be binding upon the parties hereto,
and shall inure to the benefit of the Parties hereto and, except as
otherwise provided herein, to their respective heirs, executors, personal
representatives, successors and lawful assigns. Each provision of this
Agreement shall be considered separate and if, for any reason, any
provision or provisions not essential to the effectuation of the basic
purposes of this Agreement is or are determined to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not
impair the operation of or affect those provisions of this Agreement which
are otherwise valid. To the extent legally permissible, the parties shall
substitute for the invalid, illegal or unenforceable provision a provision
with a substantially similar economic effect and intent.
8.12 Notices. All notices and other communications required or permitted
under this Agreement must be in writing and will be deemed to have been
duly given (a) when delivered in person, (b) when dispatched by electronic
facsimile transfer (if confirmed in writing by mail simultaneously
dispatched), (c) one business day after having been dispatched by a
nationally recognized overnight courier service or (d) five business days
after being sent by registered or certified mail, return receipt requested,
postage prepaid, to the appropriate Party at the address or facsimile
number specified below:
If to the Seller:
ULISSE GMBH
Salurnerstrasse 12 - 6020
Innsbruck, Austria
Attention: Luca Pasquini (Legal Representative)
Email: l.pasquini@odissea.at
with a copy (which will not constitute notice) to:
Luca Pasquini, ESQ
Amraserstrasse 79 - 6020
Innsbruck, Austria
Telephone No.: +436641321597
Email: l.pasquini@odissea.at
If to the Purchaser:
EMPIRE GLOBAL CORP.
Suite 701 - 130 Adelaide St. W.
Toronto, Ontario, M5H 2K4
Attn: Michele Ciavarella, Chief Executive Officer
Fax No.: (905) 738-0807
Email: ceo.emgl@emglcorp.com
with a copy (which will not constitute notice) to:
Beard Winter, LLP
Suite 701 - 130 Adelaide St. W.
Toronto, Ontario, M5H 2K4
Attention: Julian L. Doyle, LLB, General Counsel
Fax No.: (416) 593-5555
Email: jdoyle@beardwinter.com
8.13 Governing Law. This Agreement will be governed by and construed and
enforced in accordance with the laws of the State of Delaware, USA, without
regard to principles of conflicts of law; provided that, the actual
transfer of the Ulisse Shares in accordance with Section 2.1 will be
governed by Austrian law.
8.14 Consent to Arbitration. Unless otherwise required by applicable Law or
otherwise necessary to prevent irreparable harm (including obtaining
injunctive relief), any controversy, claim or dispute arising out of or
relating to this Agreement shall be finally and conclusively settled by
arbitration conducted by a panel of three arbitrators, each engaged in the
practice of business law, to be held in Toronto, Canada, in accordance with
the then current Rules of Arbitration of the International Chamber of
Commerce (the "ICC"); provided that, no Party shall initiate any
arbitration until the Chief Executive Officers (or equivalent) of each
Party have met and discussed resolution of such dispute. Subject to the
foregoing, a Party seeking to arbitrate a controversy, claim or dispute
shall send a written notice to the other Party(ies) hereto and the
International Court of Arbitration of the ICC. The Purchaser, on the one
hand, and the Seller, on the other hand, shall each select one arbitrator
within 20 days of the date of such written notice, and the two arbitrators
so chosen shall jointly select a third arbitrator within 15 days of the
date the last of such arbitrators is appointed. The International Court of
Arbitration of the ICC shall administer the arbitration and act as an
appointing authority if any of the arbitrators fails to be selected in
accordance with the foregoing. In the event of any conflict between the
Rules of Arbitration of the ICC and this Section 8.13 this Section 8.13
shall govern. The United Nations Convention on the Recognition and
Enforcement of Arbitral Awards (New York Convention) shall govern the
enforcement of the award, and the principles set forth in this Agreement
shall be applied by the arbitrators for both evidence and substantive legal
questions during the arbitration, including the rendering of the award. The
arbitrators' award will be final and binding and may be entered in any
court having jurisdiction thereof. Each Party will bear its own costs and
attorneys' fees and shall share the fees and expenses of the arbitrators in
the manner determined by the arbitrators. Any Party may seek injunctive
relief in an appropriate court of law or equity pending an award in
arbitration to prevent irreparable harm in the interim.
8.15 Dividends. The Parties agree that the Seller will be entitled to
receive any dividends or distributions on the Ulisse Shares that are paid by
the Company, in the ordinary course of business, with respect to its net
profits for the fiscal year 2015, and that the Seller will be entitled to
receive its pro rata share of any such dividends or distributions on the
Ulisse Shares that are paid by the Company with respect to its net profits
for the fiscal year 2016. Any such dividends and distributions will be paid
to the Seller when they are paid by the Company to any of its other
stockholders.
8.16 Signatures. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument. Delivery of an executed signature
page to this Agreement by facsimile or electronic transmission will be
effective as delivery of a manually executed counterpart to this Agreement.
[signature page follows]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year first written above.
The Purchaser:
Empire Global Corp
By: /s/ Michele Ciavarella
___________________________________________
Name: Michele Ciavarella
Title: Chairman and Chief Executive Officer
The Seller:
By: /s/ Franco Salvagni
___________________________________________
Name: Franco Salvagni
Shareholder of 11% of Ulisse Gmbh
By: /s/ Luca Pasquini
___________________________________________
Name: Luca Pasquini
Shareholder of 67% of Ulisse Gmbh
By: /s/ Gilda De Carolis
___________________________________________
Name: Gilda De Carolis
Shareholder of 11% of Ulisse Gmbh
By: /s/ Manuela Malvisi
___________________________________________
Name: Manuela Malvisi
Shareholder of 11% of Ulisse Gmbh
The Company:
Ulisse Gmbh
By: /s/ Luca Pasquini
___________________________________________
Name: Luca Pasquini
Title: Director
Signature Page to Share Exchange Agreement
Schedule 1
List of Shareholders of Ulisse Gmbh
Company Purchaser Shares Position with
Name Ownership Acquired* the Purchaser
Luca Pasquini 67% 324,800 Chief Technology Officer,
Director
Gabriele Peroni - % 324,800 Chief Business Operations Officer,
Director
Franco Salvagni 11% 324,800 VP of Land Based Operations,
Director
Gilda De Carolis 11% 324,800
Manuela Malvisi 11% 324,800
Silvia D'Amico - % 41,600
* Amount to be based on the (USD - Euro) currency exchange rate at the Closing
time and date.
Schedule 2
Non-Arms Length Transactions
(** To be completed by Ulisse Gmbh)
Schedule 3
Agencies, Property and Assets of Ulisse Gmbh
List of Agencies:
* Attach list of location addresses.
List of Property
* Attach list of property (office, building or vehicles) owned or leased.
List of Assets
* Attach list of office equipment, computers and other assets owned or
leased.