SHARE EXCHANGE AGREEMENT
This
Agreement has been made and entered into as of this 16th day of May, 2008,
by
and among Emporia, Inc., a Nevada corporation having its principal business
address at Xxx Xxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, Xxxxxx
Xxxxxxx. ST14 8AA ("Emporia"); Intent21 Ltd., a company organized pursuant
to
the laws of England and Wales having its principal business address
at Xxxx
0,
X0 Xxxxxxxx Xxxx, Xxxxxx Hall Lane, Bury, Greater Xxxxxxxxxx, Xxxxxx Xxxxxxx,
XX0 0XX ("Intent21"), and the shareholders of Intent21 that represent
100% of the issued and outstanding shares of Intent21 as specifically set forth
on Exhibit A attached hereto (collectively, jointly and severally
"Shareholders").
RECITALS
A.
The
Shareholders and the respective Boards of Directors of each of Intent21 and
Emporia, have approved and declared it advisable to effect a share exchange
(the
"Exchange") pursuant to which Emporia will acquire all of the issued and
outstanding shares of Intent21 (the “Transferred Shares”) from the Shareholders
in exchange for, collectively, 32,500,000 shares of common stock of
Emporia.
B.
The
Shareholders and the respective Boards of Directors of Intent21, Intent21 and
Emporia have determined that the Exchange is in furtherance of and consistent
with their respective long-term business strategies and is fair to and in the
best interests of their respective stockholders.
NOW,
THEREFORE, in consideration of the premises, and of the representations,
warranties, covenants and agreements contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Article
I
The
Share
Exchange
SECTION
1.1 The Share Exchange. Upon the terms and subject to the conditions set forth
in this Agreement, at the Closing, the Shareholders shall sell, convey, assign,
transfer and deliver to Sorrel, free and clear of all Liens, and Emporia shall
purchase, all right, title and interest in and to all of such Shareholder’s
shares of the Transferred Shares, free and clear of all liens, security
interests, charges, encumbrances and rights of others. In consideration for
the
shares of Transferred Shares so acquired by Emporia, Emporia shall issue and
deliver the agreed shares of Emporia common stock (“Emporia Common Stock”)(an
aggregate of 32,500,000 shares of Emporia Common Stock) to the Shareholders,
in
exchange for each share of Transferred Share transferred to Emporia pursuant
to
this Agreement, as soon as practicable following the satisfaction or permissible
waiver of the conditions set forth in Article 5.
SECTION
1.2 Closing. Subject to the terms and conditions of this Agreement, the closing
of the Exchange and the consummation of the other transactions contemplated
hereby (the "Closing") shall take place at the offices of Xxxxxxxx &
Associates, PA, 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 on May 19,
2008, 8:00 a.m. Central Standard Time (or at such other date, time and place
as
the parties hereto may agree).
SECTION
1.3 Effective Time. On the date of Closing, the Shareholders shall deliver
to
Emporia stock certificates (the "Transferred Shares Certificates") representing
the Transferred Shares duly endorsed in blank or accompanied by stock powers
endorsed in blank.
Article
II
REPRESENTATIONS
AND WARRANTIES OF INTENT21
The
Shareholders and Intent21, collectively, jointly and severally, represent,
warrant and covenant to Emporia as follows and acknowledges that Emporia is
relying upon such representations and warranties in connection with the
Contemplated Transactions (as hereinafter defined):
SECTION
2.1 Capitalization. The outstanding and issued capital stock of Intent21
consists of 100% of the companies ordinary shares which are owned by
Shareholders as specifically set forth on Exhibit A attached hereto. Intent21
does not and, at the Closing, Intent21 will not, have outstanding any capital
stock or other securities or any rights, warrants or options to acquire
securities of Intent21 or any convertible or exchangeable securities and, other
than Emporia pursuant to this Agreement, no person has or, at Closing will
have,
any right to purchase or otherwise acquire any securities of Intent21. There
are, and at Closing there will be, no outstanding obligations of Intent21 to
repurchase, redeem or otherwise acquire any securities of Intent21. All of
the
Transferred Shares are, and at Closing will be, duly authorized, duly and
validly issued, fully paid and non-assessable, and none were issued in violation
of any preemptive rights, rights of first refusal or any other contractual
or
legal restrictions of any kind.
SECTION
2.2 Title to the Shares. The Shareholders are the beneficial owners and hold
good and valid title to the Transferred Shares free and clear of any Lien.
Upon
consummation of the Contemplated Transactions and the satisfaction of the
conditions to Closing set forth herein, Emporia will own all of the issued
and
outstanding shares of capital stock of Intent21, free and clear of any Lien.
At
the Closing, the Shareholders will deliver the Transferred Shares to Emporia
free and clear of any Lien.
SECTION
2.3 Authority Relative to this Agreement. Intent21 and each Shareholder has
full
power, capacity and authority to execute and deliver each Transaction Document
to which it is or, at Closing, will be, a party and to consummate the
transactions contemplated hereby and thereby (the "Contemplated Transactions").
The execution, delivery and performance by each Shareholder and Intent21 of
each
Transaction Document and the consummation of the Contemplated Transactions
to
which Intent21 or the Shareholders, are, or at Closing, will be, a party will
have been duly and validly authorized by each Shareholder and Intent21,
respectively, and no other acts by or on behalf of either the Shareholders
or
Intent21 will be necessary or required to authorize the execution, delivery
and
performance by the Shareholders and Intent21 of each Transaction Document and
the consummation of the Contemplated Transactions to which it is or, at Closing,
will be, a party. This Agreement and the other Transaction Documents to which
the Shareholders and/or Intent21 is a party have been duly and validly executed
and delivered by the Shareholders and Intent21 and (assuming the valid execution
and delivery thereof by the other parties thereto) will constitute the legal,
valid and binding agreements of each Shareholder and Intent21 enforceable
against Shareholders and Intent21 in accordance with their respective terms,
except as such obligations and their enforceability may be limited by applicable
bankruptcy and other similar Laws affecting the enforcement of creditors' rights
generally and except that the availability of equitable remedies is subject
to
the discretion of the court before which any proceeding therefor may be brought
(whether at law or in equity).
SECTION
2.4 No Conflicts; Consents. The execution, delivery and performance by each
Shareholder and Intent21 of each Transaction Document to which it is a party
and
the consummation of the Contemplated Transactions to which the Shareholders
and/or Intent21 are a party, will not: (i) violate any provision of the articles
or memorandum of association of Intent21; (ii) require Intent21 or any
Shareholder to obtain any consent, approval or action of or waiver from, or
make
any filing with, or give any notice to, any Governmental Body or any other
person, except as set forth on Schedule 2.4 (the "Intent21 Required Consents");
(iii) violate, conflict with or result in a breach or default under (with or
without the giving of notice or the passage of time or both), or permit the
suspension or termination of, any material Contract (including any Real Property
Lease) to which Intent21 is a party or by which it or any of its assets is
bound
or subject, or to the best of the Shareholder’s and Intent21’s knowledge and
information result in the creation of any Lien upon any of the Transferred
Shares or upon any of the Assets of Intent21; (iv) violate any Order, any Law,
of any Governmental Body against, or binding upon, any Shareholder or Intent21
or upon any of their respective assets or the Business; or (v) violate or result
in the revocation or suspension of any Permit.
SECTION
2.5 Corporate Existence and Power. Intent21 is a company duly organized, validly
existing and in good standing under the laws of England and Wales, and has
all
requisite powers, authority and all Permits required to own and/or operate
its
Assets and to carry on the Business as conducted as of the date hereof. Intent21
has no subsidiaries and does not directly or indirectly own any equity or other
interest or investment in any other person.
SECTION
2.6 Charter Documents and Corporate Records. Intent21 has heretofore delivered
to Emporia true and complete copies of the certificate of incorporation and
memorandum of association and minute books, or comparable instruments, of
Intent21 as in effect on the date hereof. The stock transfer books of Intent21
have been made available to Emporia for its inspection and are true and complete
in all respects in accordance with their tenor.
SECTION
2.7 Financial Statements.
(a)
Schedule 2.7A sets forth true, complete and correct copies of: (i) Intent21's
financial statements as of and for the years ended December 31, 2006 and
December 31, 2007 (the "Annual Statement"); and (ii) Intent21's financial
statements as of and for the four months ended April 30, 2008 (the "Interim
Statements"). The Annual Statement present fairly and accurately in all material
respects the financial position of Intent21 as of its date, and the earnings,
changes in stockholders' equity and cash flows thereof for the periods then
ended in accordance with U.K. GAAP, consistently applied. Each balance sheet
contained therein or delivered pursuant hereto fully sets forth all consolidated
Assets and Liabilities of Intent21 existing as of its date which, under U.K.
GAAP, should be set forth therein, and each statement of earnings contained
therein or delivered pursuant hereto sets forth the items of income and expense
of Intent21 which should be set forth therein in accordance with U.K.
GAAP.
(b)
All
financial, business and accounting books, ledgers, accounts and official and
other records relating to Intent21 have been properly and accurately kept and
completed, and Intent21 has no knowledge, notice belief or information there
are
any material inaccuracies or discrepancies contained or reflected therein.
SECTION
2.8 Liabilities. Intent21 has not incurred any Liabilities since April 30,
2008
(the "Latest Balance Sheet Date") except (i) current Liabilities for trade
or
business obligations incurred in connection with the purchase of goods or
services in the ordinary course of the Business and consistent with past
practice, and (ii) Liabilities reflected on any balance sheet referred to in
Section 2.7(a).
SECTION
2.9 Intent21 Receivables. Except to the extent of the amount of the allowance
for doubtful accounts reflected in the Annual Statements, all the Receivables
of
Intent21 reflected therein, and all Receivables that have arisen since the
Latest Balance Sheet Date (except Receivables that have been collected since
such date), are valid and enforceable Claims subject to no known defenses,
offsets, returns, allowances or credits of any kind, and constitute bona fide
Receivables collectible in the ordinary course of the Business except as
enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or similar laws or principles
of
equity affecting the enforcement of creditors rights generally.
SECTION
2.10 Absence of Certain Changes. (a)(a) Since April 30, 2008 Intent21 has
conducted the Business in the ordinary course consistent with past practice,
except as disclosed on Schedule 2.10 hereof, and there has not
been:
(i)
Any
material adverse change in the Condition of the Business;
(ii) Any
damage, destruction or other casualty loss (whether or not covered by
insurance), condemnation or other taking affecting the Business or the Assets
of
Intent21;
(iii) Any
change in any method of accounting or accounting practice by
Intent21;
(iv) Except
for normal increases granted in the ordinary course of business, any increase
in
the compensation, commission, bonus or other direct or indirect remuneration
paid, payable or to become payable to any officer, stockholder, director,
consultant, agent or employee of Intent21, or any alteration in the benefits
payable or provided to any thereof;
(v) Any
material adverse change in the relationship of Intent21 with its employees,
customers, suppliers or vendors;
(vi) Except
for any changes made in the ordinary course of Business, any material change
in
any of Intent21's business policies, including advertising, marketing, selling,
pricing, purchasing, personnel, returns or budget policies;
(vii) Any
agreement or arrangement whether written or oral to do any of the
foregoing.
(viii) Intent21
has no Liability that is past due.
SECTION
2.11 Leased Real Property. (a)(a) Intent21 has no fee interest, purchase options
or rights of first refusal in any real property and Intent21 has no leasehold
or
other interest in any real property, except as set forth on Schedule 2.11 (the
"Leased Real Property"), and all leases including all amendments, modifications,
extensions, renewals and/or supplements thereto (collectively, "Real Property
Leases") are described on Schedule 2.11.
SECTION
2.12 Personal Property; Assets. Intent21 has good and valid title to (or valid
leasehold interest in) all of its personal property and Assets, free and clear
of all Liens, except the Permitted Liens and as indicated on Schedule 2.12.
The
machinery, equipment, computer software and other tangible personal property
constituting part of the Assets and all other Assets (whether owned or leased)
are in good condition and repair (subject to normal wear and tear) and are
reasonably sufficient and adequate in quantity and quality for the operation
of
the Business as previously and presently conducted. Schedule 2.12 contains
a
list and description of all tangible personal property owned or leased by
Intent21 with a book value (before depreciation) of $10,000 or more. The Assets
constitute all of the assets, which are necessary to operate the Business of
Intent21 as currently conducted.
SECTION
2.13 Contracts. (a)(a) Schedule 2.13 sets forth an accurate and complete list
of
all Contracts to which Intent21 is a party or by which it or its Assets are
bound or subject that: (i) cannot be cancelled upon 30 days' notice without
the
payment or penalty of less than One Thousand Dollars ($1,000); or (ii) involve
aggregate annual future payments by or to any person of more than Five Thousand
Dollars ($5,000). True and complete copies of all written Contracts (including
all amendments thereto and waivers in respect thereof) and summaries of the
material provisions of all oral Contracts so listed have been made available
to
Emporia.
(b)
All
Contracts to which Intent21 is a party are valid, subsisting, in full force
and
effect and binding upon Intent21 and the other parties thereto, in accordance
with their terms, except that no representation or warranty is given as to
the
enforceability of any oral Contracts. To the best of the Shareholders’ knowledge
and belief, except as set forth on Schedule 2.13, Intent21 is not in default
(or
alleged default) under any such Contract.
SECTION
2.14 Patents and Intellectual Property Rights. Intent21 does not own any
patents, trademarks, trade names, service marks, brand marks, brand names,
or
registered copyrights (collectively, the "Intellectual Property").
SECTION
2.15 Claims and Proceedings. There are no outstanding Orders of any Governmental
Body against or involving Intent21, its Assets, the Business, or the Transferred
Shares. There are no actions, suits, claims or counterclaims, examinations,
Intent21 Required Consents or legal, administrative, governmental or arbitral
proceedings or investigations (collectively, "Claims") (whether or not the
defence thereof or Liabilities in respect thereof are covered by insurance),
pending or against or involving Intent21, its Assets, the Business or the
Transferred Shares.
SECTION
2.16 Taxes. (a)(a) Except as set forth in Schedule 2.16:
(i) Intent21
has timely filed or, if not yet due but due before Closing, will timely file
all
Tax Returns required to be filed by it for all taxable periods ending on or
before the date of Closing and all such Tax Returns are or, if not yet filed,
will be, upon filing, true, correct and complete in all material
respects;
(ii) Intent21
has paid, or if payment is not yet due but due before Closing, will promptly
pay
when due to each appropriate Tax Authority, all Taxes of Intent21 shown as
due
on the Tax Returns required to be filed by it for all taxable periods ending
on
or before the date of Closing;
(iii) the
accruals for Taxes currently payable as well as for deferred Taxes shown on
the
financial statements of Intent21 as of the date of the Annual Statement or
the
date of any financial statements delivered hereunder: (A) adequately provide
for
all contingent Tax Liabilities of Intent21 as of the date thereof; and (B)
accurately reflect, as of the date thereof, all unpaid Taxes of Intent21 whether
or not disputed, in each case as required to be reflected thereon in order
for
such statements to be in accordance with U.K. GAAP;
(iv) no
extension of time has been requested or granted for Intent21 to file any Tax
Return that has not yet been filed or to pay any Tax that has not yet been
paid
and Intent21 has not granted a power of attorney that remains outstanding with
regard to any Tax matter;
(v) Intent21
has not received notice of a determination by a Tax Authority that Taxes are
currently owed by Intent21 (such determination to be referred to as a "Tax
Deficiency") and, to the Shareholders' knowledge, no Tax Deficiency is proposed
or threatened;
(vi) all
Tax
Deficiencies have been paid or finally settled and all amounts determined by
settlement to be owed have been paid;
(vii) there
are
no Tax Liens on or pending against Intent21 or any of the Assets, other than
those which constitute Permitted Liens;
(viii) there
are
no presently outstanding waivers or extensions or requests for a waiver or
extension of the time within which a Tax Deficiency may be asserted or
assessed;
(ix) no
issue
has been raised in any examination, investigation, Intent21 Required Consents,
suit, action, claim or proceeding relating to Taxes (a "Tax Intent21 Required
Consents") which, by application of similar principles to any past, present
or
future period, would result in a Tax Deficiency for such period;
(x) there
are
no pending or threatened Tax Audits of Intent21;
(xi) Intent21
has no deferred intercompany gains or losses that have not been fully taken
into
income for income Tax purposes;
(xii) there
are
no transfer or other taxes (other than income taxes) imposed by any state on
Intent21 by virtue of the Contemplated Transactions; and
(xiii) no
claim
has been made by any Tax Authority that Intent21 is subject to Tax in a
jurisdiction in which Intent21 is not then paying Tax of the type
asserted.
(b)
To
the Shareholders’ knowledge, Intent21 has collected and remitted to the
appropriate Tax Authority all sales and use or similar Taxes required to be
collected on or prior to the date of Closing and has been furnished properly
completed exemption certificates for all exempt transactions and has no
information otherwise or notice of any claim by any government or jurisdiction
with regards thereto. Intent21 has maintained and has in its possession all
records, supporting documents and exemption certificates required by applicable
sales and use Tax statutes and regulations to be retained in connection with
the
collection and remittance of sales and use Taxes for all periods up to and
including the date of Closing. With respect to sales made by Intent21 prior
to
the date of Closing for which sales and use Taxes are not yet due as of the
date
of Closing, all applicable sales and use Taxes payable with respect to such
sales will have been collected or billed by Intent21 and will be included in
the
Assets of Intent21 as of the date of Closing.
SECTION
2.17 Compliance with Laws. Intent21 is not in violation of any order, judgment,
injunction, award, citation, decree, consent decree or writ (collectively,
"Orders") nor is Intent21 in violation of any Laws of any Governmental Bodies
affecting Intent21, the Transferred Shares or the Business.
SECTION
2.18 Permits. Intent21 has obtained all licenses, permits, certificates,
certificates of occupancy, orders, authorizations and approvals (collectively,
"Permits"), and has made all required registrations and filings with all
Governmental Bodies, that are necessary to the ownership of the Assets, the
use
and occupancy of the Leased Real Property, as presently used and operated,
and
the conduct of the Business or otherwise required to be obtained by Intent21.
All Permits required to be obtained or maintained by Intent21 are listed on
Schedule 2.18 and are in full force and effect; no violations are or have been
recorded, nor have any notices or violations thereof been received, in respect
of any Permit; and no proceeding is pending or threatened to revoke or limit
any
Permit; and the consummation of the Contemplated Transactions will not (or
with
the giving of notice or the passage of time or both will not) cause any Permit
to be revoked or limited.
SECTION
2.19 Environmental Matters. Intent21 is, and at all times has been, in full
compliance with, and has not been and is not in violation of or liable under,
any Environmental Law.
SECTION
2.20 Finders Fees. There is no investment banker, broker, finder or other
intermediary which has been retained by or is authorized to act on behalf of
Intent21 who might be entitled to any fee or commission from Intent21 in
connection with the consummation of the Contemplated Transactions.
SECTION
2.21 Disclosure. Neither this Agreement, the Schedules hereto, nor any reviewed
or unaudited financial statements, documents or certificates furnished or to
be
furnished to Emporia by or on behalf of Intent21 or the Shareholders pursuant
to
this Agreement contains or will contain any untrue statement of a material
fact
or omits or will omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There are no events,
transactions or other facts, which, either individually or in the aggregate,
may
give rise to circumstances or conditions which would have a material adverse
effect on the general affairs or Condition of the Business.
Article
III
REPRESENTATIONS
AND WARRANTIES OF EMPORIA
Emporia
represents, warrants and covenants to Intent21 as follows and acknowledges
that
the Shareholders are relying upon such representations and warranties in
connection with the Contemplated Transactions:
SECTION
3.1 Authority Relative to this Agreement. The Board of Directors has authorized
the officers of Emporia to execute and deliver each Transaction Document to
which it is or, at Closing, will be, a party and to consummate the Contemplated
Transactions. Following the approval of the shareholders of Emporia with respect
to the Contemplated Transactions, the execution, delivery and performance by
Emporia of each Transaction Document and the consummation of the Contemplated
Transactions to which it is or, at Closing, will be, a party no other acts
by or
on behalf of Emporia are necessary or required to authorize the execution,
delivery and performance by Emporia of each Transaction Document and the
consummation of the Contemplated Transactions to which it is or, at Closing,
will be a party. This Agreement and the other Transaction Documents to which
Emporia is a party have been, executed and delivered by Emporia and (assuming
the valid execution and delivery thereof by the other parties thereto)
constitutes, or will, at the Closing, constitute, as the case may be, the legal,
valid and binding agreements of Emporia enforceable against it in accordance
with their respective terms, except as such obligations and their enforceability
may be limited by applicable Laws affecting the enforcement of shareholders’ or
creditors' rights generally and except that the availability of equitable
remedies is subject to the discretion of the court before which any proceeding
therefor may be brought (whether at law or in equity).
SECTION
3.2 No Conflicts; Consents. The execution, delivery and performance by Emporia
of each Transaction Document to which it is a party and the consummation of
the
Contemplated Transactions to which Emporia is a party does not and will not:
(i)
violate any provision of the certificate of incorporation or by-laws of Emporia,
as the case may be; (ii) other than the filing of Form 8K and such other forms
or schedules as may be required by the SEC, require Emporia to obtain any
consent, approval or action of or waiver from, or make any filing with, or
give
any notice to, any Governmental Body or any other person; (iii) except as set
forth in Schedule 3.2, violate, conflict with or result in the breach or default
under (with or without the giving of notice or the passage of time), or permit
the suspension or termination of, any material Contract to which Emporia is
a
party or any of them or any of its assets is bound or subject or result in
the
creation or any Lien upon any assets of Emporia; or (iv) violate any Order
or,
to Emporia’s knowledge, any Law of any Governmental Body against, or binding
upon, Emporia, or upon any of its respective assets or businesses.
SECTION
3.3 Corporate Existence and Power of Emporia. Emporia is a corporation duly
organized, validly existing and in good standing under the laws of the State
of
Nevada, and has all requisite corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION
3.4 Capitalization. The authorized capital stock of Emporia consists of: (i)
200,000,000 shares of common stock, $0.01 par value (the "Emporia Common
Stock"). Emporia has approximately 96,000,000 shares of common stock issued
and
outstanding. All of Emporia Common Stock is, and at Closing will be, duly
authorized, duly and validly issued, fully paid and non-assessable, and none
were issued in violation of any pre-emptive rights, rights of first refusal
or
any other contractual or legal restrictions of any kind except for 20,236,125
shares, issued to Challis International Limited which are the subject of a
re-issuance and escrow agreement currently being negotiated between. Emporia
and
certain other parties.
SECTION
3.5 Disclosure of Information. Emporia has been given the opportunity: (i)
to
ask questions of, and to receive answers from, persons acting on behalf of
Intent21 concerning the terms and conditions of the Contemplated Transactions
and the business, properties, prospects and financial conditions of Intent21;
and (ii) to obtain any additional information (to the extent Intent21 or the
Shareholders possesses such information or is able to acquire it without
unreasonable effort or expense and without breach of confidentiality
obligations) necessary to verify the accuracy of information provided about
Intent21.
SECTION
3.6 SEC Filings. As soon as reasonably practical following the Closing Date,
Emporia will have taken reasonable steps to file with the SEC, forms, reports,
schedules, and statements that may be required to be filed by it with the SEC
within the three (3) year period ending on the Effective Time, and will furnish
or made available to Intent21 accurate and complete copies of all the SEC
Documents. As of their respective dates. As of their respective dates, these
reports and statements will not contain any untrue statement of a material
fact
or omit to state a material fact required to be stated in them or necessary
to
make the statements in them not misleading, in light of the circumstances under
which they are made and these reports and statements will comply in all material
respects with all applicable requirements of the Exchange Act and the Securities
Act.
SECTION
3.7 Liabilities. Except as set forth on Schedule 3.7, Emporia has not incurred
any Liabilities since April 30, 2008 except (i) current Liabilities for trade
or
business obligations incurred in connection with the purchase of goods or
services in the ordinary course of the business and consistent with past
practice, and (ii) Liabilities reflected on any balance sheet referred to
herein.
SECTION
3.8 Absence of Certain Changes. (a)(a) Since April 30, 2008, Emporia has
conducted its business in the ordinary course consistent with past practice
and
except as disclosed on Schedule 3.8 hereto there has not been:
(i) Any
change in any method of accounting or accounting practice by
Emporia;
(ii) Any
increase in the compensation, commission, bonus or other direct or indirect
remuneration paid, payable or to become payable to any officer, stockholder,
director, consultant, agent or employee of Emporia, or any alteration in the
benefits payable or provided to any thereof;
(iii) Any
material adverse change in the relationship of Emporia with its employees,
customers, suppliers or vendors;
(iv) Except
for any changes made in the ordinary course of business, any material change
in
any of Emporia's business policies, including advertising, marketing, selling,
pricing, purchasing, personnel, returns or budget policies; and
(v) Any
agreement or arrangement whether written or oral to do any of the
foregoing.
SECTION
3.09 Contracts. (a)(a) Schedule 3.10 sets forth an accurate and complete list
of
all Contracts to which Emporia is a party or by which it or its assets are
bound
or subject that: (i) cannot be cancelled upon 30 days' notice without the
payment or penalty of less than Fifty Thousand Dollars ($50,000); or (ii)
involve aggregate annual future payments by or to any person of more than Fifty
Thousand Dollars ($50,000). True and complete copies of all written Contracts
(including all amendments thereto and waivers in respect thereof) and summaries
of the material provisions of all oral Contracts so listed have been made
available to the Shareholders.
(b)
All
Contracts to which Emporia is a party are valid, subsisting, in full force
and
effect and binding upon Emporia and the other parties thereto, in accordance
with their terms, except that no representation or warranty is given as to
the
enforceability of any oral Contracts. To the best of Emporia’s knowledge and
belief, except as set forth on Schedule 3.09, Emporia is not in default (or
alleged default) under any such Contract.
SECTION
3.10 Claims and Proceedings. There are no outstanding Orders of any Governmental
Body against or involving Emporia, its assets or its business. There are no
Claims (whether or not the defence thereof or Liabilities in respect thereof
are
covered by insurance), pending or, to the best of Emporia's knowledge,
threatened on the date hereof, against or involving Emporia, its assets or
its
business except as are set forth on Schedule 3.10.
SECTION
3.11 Taxes. Except as set forth on Schedule 3.11: (a)(a)
(i) Emporia
has filed or, if not yet due but due before Closing, will timely file all Tax
Returns required to be filed by it for all taxable periods ending on or before
the date of Closing and all such Tax Returns are or, if not yet filed, will
be,
upon filing, true, correct and complete in all material respects;
(ii) Emporia
has paid, or if payment is not yet due but due before Closing, will promptly
pay
when due to each appropriate Tax Authority, all Taxes of Emporia shown as due
on
the Tax Returns required to be filed by it for all taxable periods ending on
or
before the date of Closing;
(iii) the
accruals for Taxes currently payable as well as for deferred Taxes shown on
the
financial statements of Emporia as of the date of the Interim Statements or
the
date of any financial statements delivered hereunder: (A) adequately provide
for
all contingent Tax Liabilities of Emporia as of the date thereof; and (B)
accurately reflect, as of the date thereof, all unpaid Taxes of Emporia whether
or not disputed, in each case as required to be reflected thereon in order
for
such statements to be in accordance with U.S. GAAP;
(iv) no
extension of time has been requested or granted for Emporia to file any Tax
Return that has not yet been filed or to pay any Tax that has not yet been
paid
and Emporia has not granted a power of attorney that remains outstanding with
regard to any Tax matter;
(v) Emporia
has not received notice of a Tax Deficiency and, to Emporia's knowledge, no
Tax
Deficiency is proposed or threatened;
(vi) all
Tax
Deficiencies have been paid or finally settled and all amounts determined by
settlement to be owed have been paid;
(vii) there
are
no Tax Liens on or pending against Emporia or any of the assets, other than
those which constitute Permitted Liens;
(viii) there
are
no presently outstanding waivers or extensions or requests for a waiver or
extension of the time within which a Tax Deficiency may be asserted or
assessed;
(ix) no
issue
has been raised in any examination, investigation, suit, action, claim or
proceeding relating to Taxes which, by application of similar principles to
any
past, present or future period, would result in a Tax Deficiency for such
period;
(x) there
are
no pending or threatened Tax Audits of Emporia;
(xi) Emporia
has no deferred intercompany gains or losses that have not been fully taken
into
income for income Tax purposes;
(xii) there
are
no transfer or other taxes (other than income taxes) imposed by any state on
Emporia by virtue of the Contemplated Transactions; and
(xiii) no
claim
has been made by any Tax Authority that Emporia is subject to Tax in a
jurisdiction in which Emporia is not then paying Tax of the type
asserted.
Each
reference to a provision of the Code in this Section 3.12 shall be treated
for
state and local Tax purposes as a reference to analogous or similar provisions
of state and local law.
(b)
To
Emporia’s knowledge, Emporia has collected and remitted to the appropriate Tax
Authority all sales and use or similar Taxes required to be collected on or
prior to the date of Closing and has been furnished properly completed exemption
certificates for all exempt transactions and has no information otherwise or
notice of any claim by any government or jurisdiction with regards thereto.
Emporia has maintained and has in its possession all records, supporting
documents and exemption certificates required by applicable sales and use Tax
statutes and regulations to be retained in connection with the collection and
remittance of sales and use Taxes for all periods up to and including the date
of Closing. With respect to sales made by Emporia prior to the date of Closing
for which sales and use Taxes are not yet due as of the date of Closing, all
applicable sales and use Taxes payable with respect to such sales will have
been
collected or billed by Emporia and will be included in the assets of Emporia
as
of the date of Closing.
SECTION
3.12 Compliance with Laws. Emporia is not in violation of any Orders and to
the
best of Emporia’s knowledge, belief and information, any Laws of any
Governmental Bodies affecting Emporia or Emporia Common Stock.
SECTION
3.13 Environmental Matters. To the best of Emporia’s knowledge, belief and
information, Emporia is, and at all times has been, in full compliance with,
and
has not been and is not in violation of or liable under, any Environmental
Law.
SECTION
3.14 Finders Fees. There is no investment banker, broker, finder or other
intermediary which has been retained by or is authorized to act on behalf of
Emporia who might be entitled to any fee or commission from Emporia in
connection with the consummation of the Contemplated Transactions.
SECTION
3.15 Disclosure. Neither this Agreement, the Schedules hereto, nor any reviewed
or unaudited financial statements, documents or certificates furnished or to
be
furnished to the Shareholders or Intent21 by or on behalf of Emporia pursuant
to
this Agreement contains or will contain any untrue statement of a material
fact
or omits or will omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There are no events,
transactions or other facts, which, either individually or in the aggregate,
may
give rise to circumstances or conditions which would have a material adverse
effect on the general affairs or business of Emporia.
Article
IV
COVENANTS
AND AGREEMENTS
The
Shareholders covenant to Emporia; and Emporia covenants to the Shareholders
that:
SECTION
4.1 Filings and Authorizations. The parties hereto shall cooperate and use
their
respective best efforts to make, or cause to be made, all registrations,
filings, applications and submissions, to give all notices and to obtain all
governmental or other third party consents, transfers, approvals, Orders and
waivers necessary or desirable for the consummation of the Contemplated
Transactions in accordance with the terms of this Agreement including without
limitation the preparation of any SEC Documents required to be filed with the
SEC in connection with the transactions contemplated by this Agreement; and
shall furnish copies thereof to each other party prior to such filing and shall
not make any such registration, filing, application or submission to which
the
Shareholders reasonably object in writing. All such filings shall comply in
form
and content in all material respects with applicable Law. The parties hereto
also agree to furnish each other with copies of such filings and any
correspondence received from any Governmental Body in connection
therewith.
SECTION
4.2 Confidentiality. Each party hereto shall hold in strict confidence, and
shall use its best efforts to cause all of its officers, employees, agents
and
professional counsel and accountants, (collectively, "Representatives") to
hold
in strict confidence, unless compelled to disclose by judicial or administrative
process, or by other requirements of Law, all information concerning any other
party which it has obtained from such party prior to, on, or after the date
hereof in connection with the Contemplated Transactions, and each party shall
not use or disclose to others, or permit the use of or disclosure of, any such
information so obtained, and will not release or disclose such information
to
any other person, except its Representatives who need to know such information
in connection with this Agreement and who shall be advised of the provisions
of
this Section 4.2. The foregoing provision shall not apply to any such
information to the extent; (i) known by any party prior to the date such
information was provided to such party in connection with the Contemplated
Transactions; (ii) made known to such party from a third party not in breach
of
any confidentiality requirement; or (iii) made public through no fault of such
party or any of its Representatives.
SECTION
4.3 Expenses. The Shareholders, Emporia and Intent21 shall bear their respective
expenses, in each case, incurred in connection with the preparation, execution
and performance of the Transaction Documents and the Contemplated Transactions,
including, without limitation, all fees and expenses of their respective
Representatives.
SECTION
4.4 Tax Matters. The Shareholders and Emporia shall reasonably cooperate, and
shall cause their respective Representatives reasonably to cooperate, in
preparing and filing all Tax Returns, including maintaining and making available
to each other all records necessary in connection with the preparation and
filing of Tax Returns, the payment of Taxes and the resolution of Tax Audits
and
Tax Deficiencies with respect to all taxable periods. Refunds or credits of
Taxes that were paid by Intent21 with respect to any periods shall be for the
account of Intent21.
SECTION
4.5 Further Assurances. At any time and from time to time after the date of
Closing, upon the reasonable request of any party hereto, the other party(ies),
shall do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged or delivered, all such further documents, instruments or
assurances, as may be necessary, desirable or proper to carry out the intent
and
accomplish the purposes of this Agreement.
SECTION
4.6 Restricted Securities. The parties acknowledge and agree that the
Transferred Shares being issued or transferred pursuant to the Contemplated
Transactions are being issued or transferred pursuant to the exemption from
the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act") and constitute "restricted securities" within the meaning
of
the Securities Act. Such securities may not be transferred absent compliance
with the provisions of the Securities Act, other applicable Laws, and all stock
certificates evidencing such securities shall bear a legend to such effect
and
to the effect that such shares are subject to the terms and provisions of this
Agreement.
SECTION
4.7 Due Diligence. Prior to the Closing Date The parties agree that each of
them
shall be entitled, through its Representatives, to make such investigation
of
the properties, businesses and operations of each other party, and such
examination of the books, records and financial condition of the other parties,
as such party reasonably deems necessary. Any such investigation and examination
shall be conducted at reasonable times, under reasonable circumstances and
upon
reasonable notice. No investigation by a party shall diminish or obviate any
of
the representations, warranties, covenants or agreements of the other parties
contained in this Agreement.
SECTION
4.8 Rescission of the Exchange If, on the sixth month anniversary of the
Closing, the prior thirty (30) day average closing price for the shares of
Emporia Common Stock (as quoted on the pink sheets electronic quotation system
or such other system or exchange where the Emporia Common Stock is traded)
is
less than $0.25 per share (and adjusted to compensate for any reconfiguration
or
other numerical change of the number of shares in issue in Emporia Common
Stock), the Shareholders shall have the option (which shall be exercised in
a
writing and delivered to Emporia not less than ten (10) days following the
Determination Date) to either: (i) be issued to them additional shares of
Emporia Common Stock to compensate the Shareholders up to a maximum number
of
shares equal to the net profit before Tax of Intent21 for the relevant period
of
the previous tax year to be issued at 20 cents per share; or (ii) unwind the
Exchange (the “Rescission”) with the effect that the Transferred Shares shall be
returned to the Shareholders and the Emporia Common Stock issued to the
Shareholders shall be cancelled [provided that Intent21 has reached their basic
profit level of existing business as at the time of closing]; provided, however,
that if, at the time of the Rescission, the Shareholders are unable to deliver
all the Emporia Common Stock received at the Closing because it is loaned,
pledged, assigned or otherwise unavailable, the Rescission shall not be an
option for the Shareholders.. In the event of the Rescission, ongoing joint
business between Emporia and Intent21, if any, at the time of Rescission shall
remain the business of Emporia. Notwithstanding anything contained herein to
the
contrary, in the event that the net profit before tax of Intent21 in the fiscal
year ended 2007 or 2008 does not exceed $150,000, Emporia may, at its option
and
in its sole discretion, unwind the transaction and cancel the Emporia Common
Stock issued to the Shareholders and return the Transferred Shares.
Article
V
CONDITIONS
TO CLOSING
SECTION
5.1 Conditions to the Obligations of the Parties. The obligations of the Parties
to consummate the Contemplated Transactions are subject to the satisfaction
of
the following conditions:
(a)
No
Injunction. No provision of any applicable Law and no Order shall prohibit
the
consummation of the Contemplated Transactions.
(b)
No
Proceedings or Litigation. No Claim instituted by any person (other than
pursuant to this Agreement) shall have been commenced or pending against
Intent21, Emporia, the Shareholders or any of their respective Affiliates,
officers or directors, which Claim seeks to restrain, prevent, change or delay
in any respect the Contemplated Transactions or seeks to challenge any of the
terms or provisions of this Agreement or seeks damages in connection with any
of
such transactions.
SECTION
5.2 Conditions to the Obligations of the Shareholders. The obligations of the
Shareholders hereunder to consummate the Contemplated Transactions are subject,
at the option of the Shareholders, to the fulfilment prior to or at the Closing
of each of the following further conditions:
(a)
Performance. Emporia shall have performed and complied in all material respects
with all agreements, obligations and covenants required by this Agreement to
be
performed or complied with by it at or prior to the Closing Date.
(b)
Representations and Warranties. The representations and warranties of Emporia
contained in this Agreement and in any certificate or other writing delivered
by
Emporia pursuant hereto shall be true in all material respects at and as of
the
Closing Date as if made at and as of such time (except for those representations
and warranties made as of a specific date which shall be true in all material
respects as of the date made).
(c)
No
Material Adverse Change. From the date hereof through the Closing, there shall
not have occurred any event or condition that has had or could have a material
adverse effect on Emporia.
(d)
Documentation. There shall have been delivered to Intent21 the
following:
(i) a
certificate, dated the Closing Date, of the Chairman of the Board and the
President of Emporia confirming the matters set forth in Section 5.2(a) (b)
and
(c) hereof;
(ii) the
stock
certificates in the names of the Shareholders and in the amounts of Emporia
Common Stock as set forth on Exhibit A attached hereto; and
(iii) resolutions
adopted by the board of directors of Emporia authorizing the transactions
contemplated hereby, certified by the Secretary of Emporia.
SECTION
5.3 Conditions to the Obligations of Emporia. All obligations of Emporia to
consummate the Contemplated Transactions hereunder are subject, at the option
of
Emporia, to the fulfilment prior to or at the Closing of each of the following
further conditions:
(a)
Performance. The Shareholders and Intent21 shall have performed and complied
in
all material respects with all agreements, obligations and covenants required
by
this Agreement to be performed or complied with by them at or prior to the
Closing Date.
(b)
Representations and Warranties. The representations and warranties of the
Shareholders and Intent21, contained in this Agreement and in any certificate
or
other writing delivered by the Shareholders and/or Intent21 pursuant hereto
shall be true in all material respects at and as of the Closing Date as if
made
at and as of such time (except for those representations and warranties made
as
of a specific date which shall be true in all material respects as of the date
made).
(c)
No
Material Adverse Change. From the date hereof through the Closing, there shall
not have occurred any event or condition that has had or could have a material
adverse effect on Intent21.
(d)
Documentation. There shall have been delivered to Emporia the
following:
(i) A
certificate, dated the Closing Date, of the Chairman of the Board, the President
or Chief Financial Officer of Intent21 confirming the matters set forth in
Section 5.3(a) (b) and (c) hereof;
(ii) A
certificate, dated the Closing Date, of the Secretary of Intent21 and the
Shareholders certifying, among other things, that attached or appended to such
certificate: (i) is a true and correct copy of Intent21's articles of
incorporation and all amendments thereto; and (ii) is a true and correct copy
of
Intent21's memorandum of association;
(iii) resolutions
adopted by the Shareholders authorizing the transactions contemplated hereby,
certified by the Secretary of Intent21; and
(iv) Transferred
Share Certificate representing the Transferred Shares duly endorsed in blank
or
accompanied by stock powers duly endorsed in blank and in suitable form for
transfer to Emporia by delivery.
Article
VI
INDEMNIFICATION
SECTION
6.1 Survival of Representations, Warranties and Covenants. (a) Notwithstanding
any right of Emporia fully to investigate the affairs of Intent21 and the
Shareholders and the rights of the Shareholders to fully investigate the affairs
of Emporia, and notwithstanding any knowledge of facts determined or
determinable by the Shareholders, Emporia, or Intent21, pursuant to such
investigation or right of investigation, the Shareholders and Emporia have
the
right to rely fully upon the representations, warranties, covenants and
agreements of Intent21, the Shareholders and Emporia respectively, contained
in
this Agreement, or listed or disclosed on any Schedule hereto or in any
instrument delivered in connection with or pursuant to any of the foregoing.
All
such representations, warranties, covenants and agreements shall survive the
execution and delivery of this Agreement and the Closing hereunder.
Notwithstanding the foregoing, all representations and warranties of the
Shareholders, Intent21 and Emporia respectively, contained in this Agreement,
on
any Schedule hereto or in any instrument delivered in connection with or
pursuant to this Agreement shall terminate and expire twenty four (24) months
after the date of Closing; provided, however, that the liability of the
Shareholders and Emporia shall not terminate as to any specific claim or claims
of the type referred to in Section 6.3 hereof, whether or not fixed as to
Liability or liquidated as to amount, with respect to which the Shareholders
and/or Emporia has been given specific notice on or prior to the date on which
such Liability would otherwise terminate pursuant to the terms of this Section
6.1(b), or which arise or result from or are related to a Claim for
fraud.
SECTION
6.2 Obligation of the Shareholders to Indemnify. The Shareholders agree to
indemnify, defend and hold harmless Emporia (and their respective directors,
officers, employees, Affiliates, successors and assigns) from and against all
Claims, losses, Liabilities, Regulatory Actions, damages, deficiencies,
judgments, settlements, costs of investigation or other expenses (including
Taxes, interest, penalties and reasonable attorneys' fees and fees of other
experts and disbursements and expenses incurred in enforcing this
indemnification) (collectively, the "Losses") suffered or incurred by Emporia,
or any of the foregoing persons arising out of any breach of the representations
and warranties of the Shareholders contained in this Agreement, or of the
covenants and agreements contained in this Agreement or in the Schedules or
any
other Transaction Document.
SECTION
6.3 Obligation of Emporia to Indemnify. Emporia jointly and severally agree
to
indemnify, defend and hold harmless the Shareholders (and any heirs, successor
or assignee thereof) from and against any Losses suffered or incurred by the
Shareholders or any of the foregoing persons arising out of any breach of the
representations and warranties of Emporia, or of the covenants and agreements
of
Emporia contained in this Agreement or in the Schedules or any other Transaction
Document.
SECTION
6.4 Notice and Opportunity to Defend Third Party Claims. (a)(a) Within ten
(10)
days following receipt by any party hereto (the "Indemnitee") of notice of
any
demand, claim, circumstance or Tax Audit which would or might give rise to
a
claim, or the commencement (or threatened commencement) of any action,
proceeding or investigation that may result in a Loss (an "Asserted Liability"),
the Indemnitee shall give notice thereof (the "Claims Notice") to the party
or
parties obligated to provide indemnification pursuant to Sections 6.2, or 6.3
(collectively, the "Indemnifying Party"). The Claims Notice shall describe
the
Asserted Liability in reasonable detail and shall indicate the amount
(estimated, if necessary, and to the extent feasible) of the Loss that has
been
or may be suffered by the Indemnitee.
(b)
The
Indemnifying Party may elect to defend, at its own expense and with its own
counsel, any Asserted Liability unless: (i) the Asserted Liability includes
a
Claim seeking an Order for injunction or other equitable or declaratory relief
against the Indemnitee, in which case the Indemnitee may at its own cost and
expense and at its option defend the portion of the Asserted Liability seeking
equitable or declaratory relief against the Indemnitee, or (ii) the Indemnitee
shall have reasonably, and in good faith, after consultation with the
Indemnifying Party, concluded that: (x) there is a conflict of interest between
the Indemnitee and the Indemnifying Party which could prevent or negatively
influence the Indemnifying Party from impartially or adequately conducting
such
defence; or (y) the Indemnitee shall have one or more defences not available
to
the Indemnifying Party but only to the extent such defence cannot legally be
asserted by the Indemnifying Party on behalf of the Indemnitee. If the
Indemnifying Party elects to defend such Asserted Liability, it shall within
ten
(10) days (or sooner, if the nature of the Asserted Liability so requires)
notify the Indemnitee of its intent to do so, and the Indemnitee shall
cooperate, at the expense of the Indemnifying Party, in the defence of such
Asserted Liability. If the Indemnifying Party elects not to defend the Asserted
Liability, is not permitted to defend the Asserted Liability by reason of the
first sentence of this Section 6.4(b), fails to notify the Indemnitee of its
election as herein provided or contests its obligation to indemnify under this
Agreement with respect to such Asserted Liability, the Indemnitee may pay,
compromise or defend such Asserted Liability at the sole cost and expense of
the
Indemnifying Party. Notwithstanding the foregoing, neither the Indemnifying
Party nor the Indemnitee may settle or compromise any claim over the reasonable
written objection of the other, provided that the Indemnitee may settle or
compromise any claim as to which the Indemnifying Party has failed to notify
the
Indemnitee of its election under this Section 6.4(b) or as to which the
Indemnifying Party is contesting its indemnification obligations hereunder.
If
the Indemnifying Party desires to accept a reasonable, final and complete
settlement of an Asserted Liability so that such Indemnitee’s Loss is paid in
full and the Indemnitee refuses to consent to such settlement, then the
Indemnifying Party’s liability to the Indemnitee shall be limited to the amount
offered in the settlement. The Indemnifying Party will exercise good faith
in
accepting any reasonable, final and complete settlement of an Asserted
Liability. In the event the Indemnifying Party elects to defend any Asserted
Liability, the Indemnitee may participate, at its own expense, in the defence
of
such Asserted Liability. In the event the Indemnifying Party is not permitted
by
the Indemnitee to defend the Asserted Liability, it may nevertheless participate
at its own expense in the defence of such Asserted Liability. If the
Indemnifying Party chooses to defend any Asserted Liability, the Indemnitee
shall make available to the Indemnifying Party any books, records or other
documents within its control that are necessary or appropriate for such defence.
Any Losses of any Indemnitee for which an Indemnifying Party is liable for
indemnification hereunder shall be paid upon written demand
therefor.
SECTION
6.5 Limits on Indemnification. (a)(a) Notwithstanding the foregoing or the
limitations set forth in Section 6.5(b) below, in the event such Losses arise
out of any fraud related matter on the part of any Indemnifying Party, then
such
Indemnifying Party shall be obligated to indemnify the Indemnitee in respect
of
all such Losses.
(b)
The
Shareholders shall not be liable to indemnify Emporia pursuant to Section 6.2
above and Emporia shall not be liable to indemnify the Shareholders pursuant
to
Section 6.3 above with respect to special, consequential or punitive damages;
or
in respect of any individual Loss of less than $10,000.
SECTION
6.6 Exclusive Remedy. The parties agree that the indemnification provisions
of
this Article VI shall constitute the sole or exclusive remedy of any party
in
seeking damages or other monetary relief with respect to this Agreement and
the
Contemplated Transactions, provided that, nothing herein shall be construed
to
limit the right of any party to seek: (i) injunctive relief for a breach of
this
Agreement; (ii) legal or equitable relief for a Claim for fraud; or (iii)
indemnity under the bylaws of Emporia if they are or have been a director or
officer of Emporia.
Article
VII
SPECIFIC
PERFORMANCE; TERMINATION
SECTION
7.1 Specific Performance. The Shareholders acknowledges and agrees that, if
they
fails to proceed with the Closing in any circumstance other than those described
in clauses (a), (b), (c) or (d) of Section 7.2 below, Emporia will not have
adequate remedies at law with respect to such breach. In such event, and in
addition to each party's right to terminate this Agreement, each party shall
be
entitled, without the necessity or obligation of posting a bond or other
security, to seek injunctive relief, by commencing a suit in equity to obtain
specific performance of the obligations under this Agreement or to xxx for
damages, in each case, without first terminating this Agreement. The
Shareholders or Emporia specifically affirms the appropriateness of such
injunctive, other equitable relief or damages in any such action.
SECTION
7.2 Termination. This Agreement may be terminated and the Contemplated
Transactions may be abandoned at any time prior to the Closing:
(a)
By
mutual written consent of the Shareholders and Emporia;
(b)
By
the Shareholders if: (i) there has been a material misrepresentation or material
breach of warranty on the part of Emporia in the representations and warranties
contained herein and such misrepresentation or breach of warranty, if curable,
is not cured within ninety days after written notice thereof from the
Shareholders; (ii) Emporia has committed a breach of any covenant imposed upon
it hereunder and fails to cure such breach within thirty days after written
notice thereof from the Shareholders; or (iii) any condition to the
Shareholders” obligations under Article V becomes incapable of fulfilment
through no fault of the Shareholders and is not waived by Emporia;
(c)
By
Emporia, if: (i) there has been a misrepresentation or breach of warranty on
the
part of the Shareholders in the representations and warranties contained herein
and such misrepresentation or breach of warranty, if curable, is not cured
within thirty days after written notice thereof from Emporia; (ii) the
Shareholders have committed a breach of any covenant imposed upon them hereunder
and fail to cure such breach within thirty days after written notice thereof
from Emporia; or (iii) any condition to Emporia’s obligations under Article V
becomes incapable of fulfilment through no fault of Emporia and is not waived
by
the Shareholders; and
(d)
By
the Shareholders or by Emporia, if any condition under Section 5.1 becomes
incapable of fulfilment through no fault of the party seeking termination and
is
not waived by the party seeking termination.
SECTION
7.3 Effect of Termination; Right to Proceed. Subject to the provisions of
Section 7.1 hereof, in the event that this Agreement shall be terminated
pursuant to Section 7.2, all further obligations of the parties under this
Agreement shall terminate without further liability of any party hereunder
except that: (i) the agreements contained in Section 4.2 shall survive the
termination hereof; and (ii) termination shall not preclude any party from
seeking relief against any other party for breach of Section 4.2. In the event
that a condition precedent to its obligation is not met, nothing contained
herein shall be deemed to require any party to terminate this Agreement, rather
than to waive such condition precedent and proceed with the Contemplated
Transactions.
Article
VIII
MISCELLANEOUS
SECTION
8.1 Notices. (a) Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally by hand or
by
recognized overnight courier, or mailed (by registered or certified mail,
postage prepaid return receipt requested) as follows:
If
to
Emporia, one copy to:
Xxxxxx
X.
Xxxxx
CEO
Emporia
Inc
If
to the
Shareholders, one copy to:
Xxxxxx
Xxxxxx
Managing
Director
Intent
21
Ltd
(b)
Each
such notice or other communication shall be effective when delivered at the
address specified in Section 8.1(a). Any party by notice given in accordance
with this Section 8.1 to the other parties may designate another address or
person for receipt of notices hereunder. Notices by a party may be given by
counsel to such party.
SECTION
8.2 Entire Agreement. This Agreement (including the Schedules and Exhibits
hereto) and the collateral agreements executed in connection with the
consummation of the Contemplated Transactions contain the entire agreement
among
the parties with respect to the subject matter hereof and related transactions
and supersede all prior agreements, written or oral, with respect
thereto.
SECTION
8.3 Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies.
This Agreement may be amended, superseded, cancelled, renewed or extended only
by a written instrument signed by the Shareholders and Emporia. The provisions
hereof may be waived in writing by the Shareholders and Emporia, as the case
may
be. Any such waiver shall be effective only to the extent specifically set
forth
in such writing. No failure or delay on the part of any party in exercising
any
right, power or privilege hereunder shall operate as a waiver thereof. Nor
shall
any waiver on the part of any party of any such right, power or privilege,
nor
any single or partial exercise of any such right, power or privilege, preclude
any other or further exercise thereof or the exercise of any other such right,
power or privilege. Except as otherwise provided herein, the rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity.
SECTION
8.4 Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Nevada applicable to agreements made and to be
performed entirely within such State without regard to the conflict of laws
rules thereof.
SECTION
8.5 Consent to Jurisdiction. Each of the parties hereto irrevocably and
voluntarily submits to personal jurisdiction in the State of Minnesota and
in
the Federal courts in such state in any action or proceeding arising out of
or
relating to this Agreement and agrees that all claims in respect of such action
or proceeding may be heard and determined in any such court. If for any reason
the Federal courts in such state will not entertain such action or proceeding,
then the parties hereto irrevocably and voluntarily submit to personal
jurisdiction in the state courts located in the State of Minnesota in any action
or proceeding arising out of or relating to this Agreement and agree that all
claims in respect of any action or proceeding may be heard and determined in
any
such court. Each of the parties further consents and agrees that such party
may
be served with process in the same manner as a notice may be given under Section
8.1. The parties hereto agree that any action or proceeding instituted by any
of
them against any other party with respect to this Agreement will be instituted
exclusively in the United States District Court located within the State of
Minnesota, or alternatively, in the State courts located therein. Each party
irrevocably and unconditionally waive and agree not to plead, to the fullest
extent permitted by law, any objection that they may now or hereafter have
to
the laying of venue or the convenience of the forum of any action or proceeding
with respect to this Agreement in any such courts.
SECTION
8.6 Binding Effect; No Assignment. This Agreement and all of its provisions,
rights and obligations shall be binding upon and shall inure to the benefit
of
the parties hereto and their respective successors, heirs and legal
representatives. This Agreement may not be assigned (including by operation
of
Law) by any party hereto without the express written consent of the other party
and any purported assignment, unless so consented to, shall be void and without
effect.
SECTION
8.7 Exhibits. All Exhibits and Schedules attached hereto are hereby incorporated
by reference into, and made a part of, this Agreement.
SECTION
8.8 Severability. If any provision of this Agreement for any reason shall be
held to be illegal, invalid or unenforceable, such illegality shall not affect
any other provision of this Agreement, this Agreement shall be amended so as
to
enforce the illegal, invalid or unenforceable provision to the maximum extent
permitted by applicable law, and the parties shall cooperate in good faith
to
further modify this Agreement so as to preserve to the maximum extent possible
the intended benefits to be received by the parties.
SECTION
8.9 Counterparts. The Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original as against any party whose
signature appears thereon, and all of which shall together constitute one and
the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories.
SECTION
8.10 Third Parties. Except as specifically set forth or referred to herein,
nothing herein express or implied is intended or shall be construed to confer
upon or give to any person other than the parties hereto and their permitted
heirs, successors, assigns and legal representatives, any rights or remedies
under or by reason of this Agreement or the Contemplated
Transactions.
Article
IX
DEFINITIONS
SECTION
9.1 Definitions. The following terms, as used herein, have the following
meanings:
"Affiliate"
of any person means any other person directly or indirectly through one or
more
intermediary persons, controlling, controlled by or under common control with
such person.
"Agreement"
or "this Agreement" shall mean, and the words "herein", "hereof" and "hereunder"
and words of similar import shall refer to, this agreement as it from time
to
time may be amended.
"Assets"
shall mean all cash, instruments, properties, rights, interests and assets
of
every kind, real, personal or mixed, tangible and intangible, used or usable
in
the Business.
The
term
"audit" or "audited" when used in regard to financial statements shall mean
an
examination of the financial statements by a firm of independent certified
public accountants in accordance with generally accepted auditing standards
for
the purpose of expressing an opinion thereon.
"Business"
shall mean the ownership and operation of the business of Intent21.
"Condition
of the Business" shall mean the financial condition, prospects or the results
of
operations of the Business, the Assets or Intent21.
"Contract"
shall mean any contract, agreement, indenture, note, bond, lease, conditional
sale contract, mortgage, license, franchise, instrument, commitment or other
binding arrangement, whether written or oral.
The
term
"control", with respect to any person, shall mean the power to direct the
management and policies of such person, directly or indirectly, by or through
stock ownership, agency or otherwise, or pursuant to or in connection with
an
agreement, arrangement or understanding (written or oral) with one or more
other
persons by or through stock ownership, agency or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the
foregoing.
"GAAP"
shall mean generally accepted accounting principles in effect on the date hereof
(or, in the case of any opinion rendered in connection with an audit, as of
the
date of the opinion) in the subject jurisdiction.
"Governmental
Bodies" shall mean any government, municipality or political subdivision
thereof, whether federal, state, local or foreign, or any governmental or
quasi-governmental agency, authority, board, bureau, commission, department,
instrumentality or public body, or any court, arbitrator, administrative
tribunal or public utility.
The
term
"knowledge" with respect to: (a) any individual shall mean actual knowledge
of
such individual; and (b) any corporation shall mean the actual knowledge of
the
directors and executive officers of such corporation; and "knows" has a
correlative meaning. The terms "any Shareholder's knowledge," and "Shareholder's
knowledge," including any correlative meanings, shall mean the knowledge of
any
Shareholder.
"Laws"
shall mean any law, statute, code, ordinance, rule, regulation or other
requirement of any Governmental Bodies.
"Liability"
shall mean any direct or indirect indebtedness, liability, assessment, claim,
loss, damage, deficiency, obligation or responsibility, fixed or unfixed, xxxxxx
or inchoate, liquidated or unliquidated, secured or unsecured, accrued,
absolute, actual or potential, contingent or otherwise (including any liability
under any guaranties, letters of credit, performance credits or with respect
to
insurance loss accruals).
"Lien"
shall mean any mortgage, lien (including mechanics, warehousemen, labourers
and
landlords liens), claim, pledge, charge, security interest, preemptive right,
right of first refusal, option, judgment, title defect, covenant, restriction,
easement or encumbrance of any kind.
The
term
"person" shall mean an individual, corporation, partnership, joint venture,
limited liability company, association, trust, unincorporated organization
or
other entity, including a government or political subdivision or an agency
or
instrumentality thereof.
"Receivables"
shall mean as of any date any trade accounts receivable, notes receivable,
sales
representative advances and other miscellaneous receivables of
Intent21.
"SEC"
means the United States Securities and Exchange Commission.
"SEC
Documents" means all forms, notices, reports, schedules, statements, and other
documents filed by Emporia with the SEC within the three years from the
Effective Time, whether or not constituting a "filed" document, and includes
all
proxy statements, registration statements, amendments to registration
statements, periodic reports on Forms 10-KSB, 10-QSB, and 8-K, and annual and
quarterly reports to shareholders.
"Tax"
(including, with correlative meaning, the terms "Taxes" and "Taxable") shall
mean: (i)(A) any net income, gross income, gross receipts, sales, use, ad
valorem, transfer, transfer gains, franchise, profits, license, withholding,
payroll, employment, excise, severance, stamp, rent, recording, occupation,
premium, real or personal property, intangibles, environmental or windfall
profits tax, alternative or add-on minimum tax, customs duty or other tax,
fee,
duty, levy, impost, assessment or charge of any kind whatsoever (including
but
not limited to taxes assessed to real property and water and sewer rents
relating thereto), together with; (B) any interest and any penalty, addition
to
tax or additional amount imposed by any Governmental Body (domestic or foreign)
(a "Tax Authority") responsible for the imposition of any such tax and interest
on such penalties, additions to tax, fines or additional amounts, in each case,
with respect to any party hereto, the Business or the Assets (or the transfer
thereof); (ii) any liability for the payment of any amount of the type described
in the immediately preceding clause (i) as a result of a party hereto being
a
member of an affiliated or combined group with any other person at any time
on
or prior to the date of Closing; and (iii) any liability of a party hereto
for
the payment of any amounts of the type described in the immediately preceding
clause (i) as a result of a contractual obligation to indemnify any other
person.
"Tax
Return" shall mean any return or report (including elections, declarations,
disclosures, schedules, estimates and information returns) required to be
supplied to any Tax Authority.
"Transaction
Documents" shall mean, collectively, this Agreement, and each of the other
agreements and instruments to be executed and delivered by all or some of the
parties hereto in connection with the consummation of the transactions
contemplated hereby.
SECTION
9.2 Interpretation. Unless the context otherwise requires, the terms defined
in
this Agreement shall be applicable to both the singular and plural forms of
any
of the terms defined herein. All accounting terms defined in this Agreement,
and
those accounting terms used in this Agreement except as otherwise expressly
provided herein, shall have the meanings customarily given thereto in accordance
with GAAP as of the date of the item in question. When a reference is made
in
this Agreement to Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or
interpretation of this Agreement. The use of the neuter gender herein shall
be
deemed to include the masculine and feminine genders wherever necessary or
appropriate, the use of the masculine gender shall be deemed to include the
neuter and feminine genders and the use of the feminine gender shall be deemed
to include the neuter and masculine genders wherever necessary or appropriate.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the undersigned have executed this Stock Exchange Agreement
as
of the date set forth above.
EMPORIA:
EMPORIA,
INC.
By:
Xxx
Xxxxx
Chief
Executive Officer and President
INTENT21:
INTENT21
LTD.
By:
Name:
Title:
SHAREHOLDERS:
______________________________________
Name:
Amount
of
Shares of Intent 21 owned:________
______________________________________
Name:
Amount
of
Shares of Intent 21 owned:________
______________________________________
Name:
Amount
of
Shares of Intent 21 owned:________
______________________________________
Name:
Amount
of
Shares of Intent 21 owned:________
______________________________________
Name:
Amount
of
Shares of Intent 21 owned:________
_____________________________________
Name:
Amount
of
Shares of Intent 21 owned:________
______________________________________
Name:
Amount
of
Shares of Intent 21 owned:________
