EXHIBIT 2.4
THIS NOTE MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE ALIENATED OR ENCUMBERED WITHOUT THE PRIOR WRITTEN CONSENT OF INVESTOR.
State of Utah
$100,000.00 June 17, 2015
INVESTOR NOTE #1
FOR VALUE RECEIVED, Typenex Co-Investment, LLC, a Utah limited liability company
("Investor"), hereby promises to pay to Empire Global Corp., a Delaware
corporation ("Company", and together with Investor, the "Parties"), the
principal sum of $100,000.00 together with all accrued and unpaid interest
thereon, fees incurred or other amounts owing hereunder, all as set forth below
in this Investor Note #1 (this "Note"). This Note is issued pursuant to that
certain Securities Purchase Agreement of even date herewith, entered into by and
between Investor and Company (as the same may be amended from time to time, the
"Purchase Agreement"), pursuant to which Company issued to Investor that certain
Secured Convertible Promissory Note in the principal amount of $335,000.00 (as
the same may be amended from time to time, the "Company Note") convertible into
shares of Company's Common Stock. All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Purchase
Agreement.
Principal and Interest. Interest shall accrue on the unpaid principal balance
and any unpaid late fees or other fees under this Note at a rate of eight
percent (8%) per annum until the full amount of the principal and fees has been
paid. Interest shall be computed on the basis of a 365-day year for the actual
number of days elapsed. Notwithstanding any provision to the contrary herein, in
no event shall the applicable interest rate at any time exceed the maximum
interest rate allowed under applicable law, as provided in Section 12 below. The
entire unpaid principal balance and all accrued and unpaid interest, if any,
under this Note, shall be due and payable on the date that is twenty (20) months
from the date hereof (the "Investor Note Maturity Date"); provided, however,
that Investor may elect, in its sole discretion, to extend the Investor Note
Maturity Date for up to thirty (30) days by delivering written notice of such
election to Company at any time prior to the Investor Note Maturity Date.
Payment. Unless prepaid, all principal and accrued interest under this Note is
payable in one lump sum on the Investor Note Maturity Date. All payments of
interest and principal shall be (i) in lawful money of the United States of
America, and (ii) in the form of immediately available funds. All payments shall
be applied first to costs of collection, if any, then to accrued and unpaid
interest, and thereafter to principal. Payment of principal and interest
hereunder shall be delivered to Company at the address furnished to Investor for
that purpose.
Prepayment by Investor. Investor may, with Company's consent, pay, without
penalty, all or any portion of the outstanding balance along with any accrued
but unpaid interest on this Note at any time prior to the Investor Note Maturity
Date.
Security; Collateral. Investor may, in its sole discretion, designate collateral
(the "Collateral") as it deems fit, as security for Investor's obligations
hereunder, which Collateral may be, but is not required to be, real property, a
letter of credit with a financial institution determined by Investor in its sole
discretion, or pledged membership interests, provided that the net fair market
value of the Collateral (net of any outstanding monetary liens) shall not be
less than the principal balance of this Note as of the date of any such
designation. Upon Investor's designation of Collateral, each of Investor and
Company shall timely execute any and all documents necessary or advisable in
order to properly grant a security interest upon the Collateral in favor of
Company.
Release. Company covenants and agrees that in the event that this Note is
secured by Collateral, Company shall timely execute any and all documents
necessary or advisable in order to release such security interest and Collateral
to Investor, or Investor's designee, upon the earlier of (i) the date this Note
is paid in full and (ii) the date that is six (6) months and three (3) days
following the date such Collateral is given as security for this Note, or such
later date as determined in the sole discretion of Investor (the "Release
Date"). For the avoidance of doubt, as of the date hereof, there is no
collateral securing this Note, and after the Release Date, as applicable, there
shall be no collateral securing this Note.
Right of Offset. Notwithstanding anything to the contrary herein or in any of
the other Transaction Documents, in the event (i) of the occurrence of any Event
of Default (as defined in the Company Note) under the Company Note or any other
note issued by Company in connection with the Purchase Agreement, (ii) Investor
applies a Default Effect (as defined in the Company Note) under the Company
Note, (iii) the Outstanding Balance is automatically increased to the Mandatory
Default Amount under the Company Note, (iv) the Company Note is accelerated for
any reason, or (v) of a breach of any material term, condition, representation,
warranty, covenant or obligation of Company under any Transaction Document;
Investor shall be entitled to deduct and offset any amount owing by Company
under the Company Note from any amount owed by Investor under this Note (the
"Investor Offset Right"), provided that if any of the foregoing events occur and
Investor has not yet exercised the Investor Offset Right, the Investor Offset
Right shall be automatically exercised on the date that is thirty (30) days
prior to the Investor Note Maturity Date (an "Automatic Offset"). Other than
with respect to an Automatic Offset, Investor may only elect to exercise the
Investor Offset Right by delivering to Company an offset notice in a form
substantially similar to Exhibit D to the Company Note or another form of
Investor's choosing. In the event that Investor's exercise of the Investor
Offset Right under this Section 6 results in the full satisfaction of
Investor's obligations under this Note, then Company shall return this Note to
Investor for cancellation or, in the event this Note has been lost, stolen or
destroyed, Company shall provide Investor with a lost note affidavit in a form
reasonably acceptable to Investor.
Default. If any of the events specified below shall occur (each, an "Investor
Note Default") Company may declare the unpaid principal balance under this Note,
together with all accrued and unpaid interest thereon, fees incurred or other
amounts owing hereunder immediately due and payable, by notice in writing to
Investor. If any default, other than a Payment Default (as defined below), is
curable, then the default may be cured (and no Investor Note Default will have
occurred) if Investor, after receiving written notice from Company demanding
cure of such default, either (i) cures the default within fifteen (15) days of
the receipt of such notice, or (ii) if the cure requires more than fifteen (15)
days, immediately initiates steps that Company deems in Company's reasonable
discretion to be sufficient to cure the default and thereafter diligently
continues and completes all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical. Each of the following events shall
constitute an Investor Note Default:
Failure to Pay. Investor's failure to make any payment when due and payable
under this Note (a "Payment Default");
Breaches of Covenants. Investor's failure to observe or perform any other
covenant, obligation, condition or agreement contained in this Note;
Representations and Warranties. If any representation, warranty, certificate, or
other statement (financial or otherwise) made or furnished by or on behalf of
Investor to Company in writing in connection with this Note or any of the other
Transaction Documents, or as an inducement to Company to enter into the Purchase
Agreement, shall be false or misleading in any material respect when made or
furnished; and
Involuntary Bankruptcy. If any involuntary petition is filed under any
bankruptcy or similar law or rule against Investor, and such petition is not
dismissed within sixty (60) days, or a receiver, trustee, liquidator, assignee,
custodian, sequestrator or other similar official is appointed to take
possession of any of the assets or properties of Investor.
Binding Effect; Assignment. This Note shall be binding on the Parties and their
respective heirs, successors, and assigns; provided, however, that neither Party
shall assign any of its rights hereunder without the prior written consent of
the other Party, except that Investor may assign this Note to any of its
Affiliates without the prior written consent of Company and, furthermore,
Company agrees that it shall not unreasonably withhold, condition or delay its
consent to any other assignment of this Note by Investor.
Governing Law. This Note shall be governed by and interpreted in accordance with
the laws of the State of Utah for contracts to be wholly performed in such state
and without giving effect to the principles thereof regarding the conflict of
laws.
Purchase Agreement; Arbitration of Disputes. By acceptance of this Note, each
Party agrees to be bound by the applicable terms, conditions and general
provisions of the Purchase Agreement and the other Transaction Documents,
including without limitation the Arbitration Provisions attached as an exhibit
to the Purchase Agreement.
Customer Identification-USA Patriot Act Notice. Company hereby notifies Investor
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56, signed into law October 26, 2001) (the "Act"), and Company's policies
and practices, Company is required to obtain, verify and record certain
information and documentation that identifies Investor, which information
includes the name and address of Investor and such other information that will
allow Company to identify Investor in accordance with the Act.
Lawful Interest. It being the intention of Company and Investor to comply with
all applicable laws with regard to the interest charged hereunder, it is agreed
that, notwithstanding any provision to the contrary in this Note or any of the
other Transaction Documents, no such provision, including without limitation any
provision of this Note providing for the payment of interest or other charges,
shall require the payment or permit the collection of any amount in excess of
the maximum amount of interest permitted by law to be charged for the use or
detention, or the forbearance in the collection, of all or any portion of the
indebtedness evidenced by this Note or by any extension or renewal hereof
("Excess Interest"). If any Excess Interest is provided for, or is adjudicated
to be provided for, in this Note, then in such event:
- the provisions of this Section 12 shall govern and control;
- Investor shall not be obligated to pay any Excess Interest;
- any Excess Interest that Company may have received hereunder shall, at the
option of Company, be (i) applied as a credit against the principal balance
due under this Note or the accrued and unpaid interest thereon not to exceed
the maximum amount permitted by law, or both, (ii) refunded to Investor, or
(iii) any combination of the foregoing;
- the applicable interest rate or rates shall be automatically subject to
reduction to the maximum lawful rate allowed to be contracted for in writing
under the applicable governing usury laws, and this Note and the Transaction
Documents shall be deemed to have been, and shall be, reformed and modified
to reflect such reduction in such interest rate or rates; and
- Investor shall not have any action or remedy against Company for any damages
whatsoever or any defense to enforcement of this Note or arising out of the
payment or collection of any Excess Interest.
Pronouns. Regardless of their form, all words used in this Note shall be deemed
singular or plural and shall have the gender as required by the text.
Headings. The various headings used in this Note as headings for sections or
otherwise are for convenience and reference only and shall not be used in
interpreting the text of the section in which they appear and shall not limit or
otherwise affect the meanings thereof.
Time is of Essence. Time is of the essence with this Note.
Severability. If any part of this Note is construed to be in violation of any
law, such part shall be modified to achieve the objective of the Parties to the
fullest extent permitted by law and the balance of this Note shall remain in
full force and effect.
Attorneys' Fees. If any arbitration or action at law or in equity is necessary
to enforce this Note or to collect payment under this Note, Company shall be
entitled to recover reasonable attorneys' fees directly related to such
enforcement or collection actions.
Amendments and Waivers; Remedies. No failure or delay on the part of either
Party hereto in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to either
Party hereto at law, in equity or otherwise. Any amendment, supplement or
modification of or to any provision of this Note, any waiver of any provision of
this Note, and any consent to any departure by either Party from the terms of
any provision of this Note, shall be effective (i) only if it is made or given
in writing and signed by Investor and Company and (ii) only in the specific
instance and for the specific purpose for which made or given.
Notices. Unless otherwise provided for herein, all notices, requests, demands,
claims and other communications hereunder shall be given in accordance with the
subsection of the Purchase Agreement titled "Notices." Either Party may change
the address to which notices, requests, demands, claims and other communications
hereunder are to be delivered by providing notice thereof in the manner set
forth in the Purchase Agreement.
Final Note. This Note, together with the other Transaction Documents, contains
the complete understanding and agreement of Investor and Company and supersedes
all prior representations, warranties, agreements, arrangements, understandings,
and negotiations of Investor and Company with respect to the subject matter of
the Transaction Documents. THIS NOTE, TOGETHER WITH THE OTHER TRANSACTION
DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY ALLEGED PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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IN WITNESS WHEREOF, the Parties have executed this Note as of the date set forth
above.
INVESTOR:
Typenex Co-Investment, LLC
Typenex Co-Investment, LLC
By: Red Cliffs Investments, Inc., its Manager
By:
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Xxxx X. Xxxx, President
ACKNOWLEDGED, ACCEPTED AND AGREED:
COMPANY:
Empire Global Corp.
By:
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Name: Xxxxxxx Xxxxxxxxxx, X.Xx.
Title: Chairman and CEO
