Exhibit 10.1
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement, dated as of September 22, 2014 (this
"Agreement"), by and among Empire Global Corp., a Delaware corporation with its
principal place of business at 000 Xxxxxxxx Xx. Xxxx, Xxxxx 000 Xxxxxxx,
Xxxxxxx, X0X 0X0 ("Empire" or "Company"), and Xxx Xxx (Xxxxxx Xxx) a business
person with a principal address at #205 Phantom Theme Park, 7, Gumi-ro 9
Beon-gil, Bundang-gu, Seongnam-si, Gyeonggi-do, Korea (the "Investor").
RECITALS
WHEREAS, the Investor is the record and beneficial owner, free and clear of all
liens and encumbrances of any kind whatsoever, of a 100% equity
interest in Zizon Group Co. Ltd., a corporation lawfully organized on
June 12, 2009 and currently existing under the laws of the Republic of
South Korea ("Zizon");
WHEREAS, as of the date of this Agreement, Zizon is a corporation focused on
marketing, consulting, advertisement and planning in the business of
operating and providing technical skills, website solutions,
consultancy throughout South Korea and internationally;
WHEREAS, Empire desires to purchase and the Investor desires to sell to Empire
the shares of Zizon, each on the terms and subject to the conditions as
set forth in this Agreement;
WHEREAS, in connection with the transactions contemplated hereby, Investor
and/or his Affiliates and the Company also desire to enter into at the
Closing (as defined herein) or as soon as practicable thereafter, an
Ancillary Services and Intellectual Property agreement to provide for
certain services and other arrangements between the Investor and/or his
Affiliates, on the one hand, and the Company and/or its Affiliates, on
the other hand, all as more fully described herein and therein;
WHEREAS, the Board of Directors of Empire has determined that it is advisable
and in Empire's best interests to effect an acquisition of Zizon from
the Investor on the terms and subject to the conditions as set forth in
this Agreement and such Board has approved and adopted the terms and
conditions of this Agreement; and
WHEREAS, the sale of Zizon to Empire on the terms and subject to the conditions
as set forth in this Agreement has been approved and authorized in
accordance with the terms and conditions of Investor and applicable
Korean law.
NOW, THEREFORE, in consideration of the premises and of the mutual agreements,
representations, warranties and covenants herein contained, and other good and
valuable consideration, the receipt and adequacy is hereby acknowledged, the
parties to this Agreement do hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms defined shall have the meanings set forth
in this Agreement.
1
ARTICLE II
CONTRIBUTION AND RECEIPT
2.1 Contribution and Receipt of Shareholder Shares. On the Closing Date (as
such capitalized terms is defined in section 9.1), in accordance with the
provisions of this Agreement and applicable law, the Investor will
contribute, assign, transfer and convey to Empire, and Empire will
acquire and receive from the Investor, 100% of the shares of Zizon, free
and clear of all liens and encumbrances of any kind whatsoever (the
"Exchange Transaction").
ARTICLE III
CONSIDERATION
3.1 Amount of Consideration. In consideration for the contribution,
assignment, transfer and conveyance of the Zizon shares to Empire by the
Investor pursuant to section 2.1, Empire shall pay and deliver, at the
Closing (as such capitalized term is defined in section 9.1) or as soon
as practicable thereafter, such number of shares (each, an "Exchange
Share") of the common stock, par value $0.001 per share of Empire (the
"Empire Common Stock"), as shall equal 5,000,000 (five million) or
approximately 16.7% of the total number of shares of Empire Common Stock
outstanding, on a Fully Diluted Basis (as such capitalized term is
defined in section 3.3) at a price of US$1.00 per share or $5,000,000
(five million dollars) (the "Purchase Price").
3.2 Final Payment. Immediately upon receipt of the Purchase Price but no
later than 30 days after the Purchase Price is received by the Investor
or attorney for the Investor, the Investor or Investors' attorney shall
file a notice of transfer of title of Zizon to Empire as a wholly owned
subsidiary and do all things necessary to complete and register the
transfer as required by Korean law and with all appropriate local
authorities as applicable.
3.3 Fully Diluted Basis Defined. For purposes of this Agreement, the
capitalized term "Fully Diluted Basis" shall mean the number of shares of
Empire Common Stock that would be, as of the applicable date, outstanding
if all derivative securities of Empire if any, including, without
limitation, warrants, options, rights, convertible debt, convertible
securities and exchange securities then outstanding were exercised,
converted or exchanged for shares of Empire Common Stock in accordance
with the terms of such derivative securities.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor represents, warrants and acknowledges to and covenants and agrees with
Empire as follows:
4.1 Corporate Status; Authority. The Investor:
(i) has the legal capacity to execute, deliver and perform the
Investors' obligations under this Agreement; and the consummation
of the transactions contemplated by this Agreement, including,
without limitation, the Exchange Transaction, have been duly
authorized by all necessary action on the part of the Investor
and/or Zizon's equity owner and this Agreement constitutes the
2
valid and legally binding obligation of the Investor, enforceable
against the Investor in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization or
other laws affecting the enforcement of creditors' rights generally
now or hereafter in effect and subject to the application of
equitable principles and the availability of equitable remedies;
(ii) is the lawful owner of and has the full right, power, and authority
to sell, assign, transfer and convey to Empire all of the shares of
Zizon free and clear of all liens, encumbrances, claims or rights
of every kind and nature whatsoever in accordance with the terms of
this Agreement and the sale, assignment, transfer and conveyance of
the shares of Zizon in accordance with the terms of this Agreement
will transfer good, valid and marketable title thereto free and
clear of all liens, encumbrances, claims or rights of every kind
and nature whatsoever.
4.2 Valid Issuance. The shares of Zizon have been duly authorized, are
validly issued and outstanding, fully paid for and non-assessable, and no
liability attaches to the holders of the shares of Zizon. Zizon is owned
by the Investor free and clear of any and all restrictions, liens,
claims, or encumbrances or rights of third parties of any nature
whatsoever; there are no existing options, warrants, calls, or
commitments on the part of the Investor (or, to the best knowledge of the
Investor, any other person or entity) of any character relating to the
shares of Zizon; and no voting agreements or restrictions of any kind
affect the rights of any of the shares of Zizon or the holders of all or
any portion of Zizon.
4.3 Conduct of Zizon Business. The Investor shall maintain the business of
Zizon in good standing.
4.4 Consents and Approvals, No Conflicts.
(a) The acceptance, execution and delivery of this Agreement by Investor
does not, and the performance by the Investor of his obligations under
this Agreement upon acceptance by the Investor, will not require any
consent, approval, authorization or other action by, or filing with or
notification to, any governmental or regulatory authority, except where
failure to obtain such consent, approval, authorization or action, or to
make such filing or notification, would not prevent the Investor from
performing any of the Investors' material obligations under this
Agreement and would not have a Material Adverse Effect on Zizon, and;
(b) The acceptance, execution, delivery and performance of this
Agreement by the Investor and the other agreements and documents to be
executed, delivered and performed by the Investor pursuant to this
Agreement and the consummation of the transactions contemplated by this
Agreement and thereby by the Investor, including, without limitation, the
Exchange Transaction, do not and will not conflict with, violate or
result in a breach or termination of any provision of, or constitute a
default under (or event which with the giving of notice or lapse of time,
or both, would become a default under) any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable to
the Investor or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any lien or
encumbrance on any of the assets or properties of the Investor pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument relating to such assets or
3
properties to which the Investor are a party or by which any of such
assets or properties is bound, except as would not prevent the Investor
from performing any of the Investors' material obligations under this
Agreement and would not have a Material Adverse Effect (as such
capitalized term is defined in section 11.15) on the Investor or the
Investors' assets.
4.5 Absence of Litigation. As of the date hereof, there is no action, claim,
suit, proceeding or governmental investigation pending or, to the
knowledge of the Investor, threatened, that would, individually or in the
aggregate, result in a Material Adverse Effect upon the Investor and/or
Zizon.
4.6 Investment Intent. The Investor is acquiring the Exchange Shares for the
Investors' own account, for investment only and not with a view to, or
for sale in connection with, a distribution thereof or any part thereof,
within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated thereunder,
or any applicable state securities or blue-sky laws.
4.7 Investor Status. The Investor is an accredited investor as such term is
defined under Regulation D ("Regulation D") promulgated under to the
Securities Act; and, if there should be any material change in such
status prior to the Closing, Investor will immediately advise Empire of
such change in accredited investor status.
4.8 Intent to Transfer. The Investor is not a party or subject to or bound by
any contract, undertaking, agreement or arrangement with any person to
sell, transfer or pledge the Exchange Shares or any part thereof to any
person, and has no present intention to enter into such a contract,
undertaking, agreement or arrangement.
4.9 Receipt of Disclosures. Investor acknowledges receipt of Empire's (a)
Annual Report on Form 10-K for the fiscal year ended December 31, 2013,
including all exhibits thereto, (b) Quarterly Reports on Forms 10-Q for
the quarters ended March 31, and June 30, 2014 including all exhibits
thereto, (c) all Current Reports on Form 8-K filed up to the date of
Closing, including all exhibits thereto, and (d) Annual Report on Form
10-K for the fiscal year ended December 31, 2012, including all exhibits
thereto; each as filed with the U.S. Securities and Exchange Commission
(the "SEC") (collectively, the "Empire SEC Reports"); and Investor has
read the Empire SEC Reports, including all exhibits thereto, and
understands the contents of the Empire SEC Reports.
4.10 Absence of Undisclosed Liabilities. Zizon has no material liabilities or
obligations, absolute or contingent (individually or in the aggregate),
except as set forth in the Zizon financial statements audited for the
years ended December 31, 2013 and 2012 and unaudited interim period ended
prior to the Closing date delivered by the Investor (collectively, the
"Zizon Financial Statements"), or as incurred in the ordinary course of
business after the respective dates of the Zizon Financial Statements.
4.11 Offering Exempt from Registration; Empire's Reliance. The Investor has
been advised by Empire that:
(i) 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;
(ii) Empire's reliance on the availability of such exemption is, in
4
part, based upon the accuracy and truthfulness of the Investors'
representations contained in this Agreement;
(iii) 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; and
(iv) in furtherance of the provisions of this paragraph 4.11, 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."
4.12 Sophistication of Investor. The Investor, through his agents, employees
and professional advisors (including, without limitation, the Investors'
attorneys and outside accountants), has evaluated the merits and risks
of consummating the transactions contemplated by this Agreement,
including, without limitation, the Exchange Transaction, and acquiring
the Exchange Shares and has such knowledge and experience in financial
and business matters that Investor is capable of evaluating the merits
and risks of consummating such transactions, including, without
limitation, the Exchange Transaction, and acquiring the Exchange Shares,
is aware of and has considered the financial risks and financial hazards
of consummating such transactions, including, without limitation, the
Exchange Transaction, and acquiring the Exchange Shares, and is able to
bear the economic risk of consummating such transactions, including,
without limitation, the Exchange Transaction, and acquiring the Exchange
Shares, including the possibility of a complete loss with respect
thereto.
4.13 Access to Information. The Investor has had access to such information
regarding the business and finances of Empire, and has been provided the
opportunity to discuss with Empire's management the business, affairs and
financial condition of Empire and such other matters with respect to
Empire as would concern a reasonable person considering the transactions
contemplated by this Agreement and/or concerned with the operation of
Empire, including, without limitation, pursuant to meetings and/or
discussions with management of Empire.
4.14 No Guarantees. It has never been represented, guaranteed or warranted to
the Investor by Empire, or by any of Empire's officers, directors,
agents, representatives or employees, or any other person, expressly or
by implication, that:
(i) any gain will be realized by the Investor from the Investors'
investment in the Exchange Shares;
(ii) there will be any approximate or exact length of time that the
Investor will be required to remain as a holder of the Exchange
Shares; or
(iii) the past performance or experience on the part of Empire, its
predecessors or of any other person, will in any way indicate any
future results of Empire.
5
4.15 High Degree of Investment Risk. That the acquisition of the Exchange
Shares involves a high degree of risk and may result in a loss of the
entire amount invested; that Empire has limited working capital and
limited sources of financing available; and that there is no assurance
that Empire's operations, including the operations of Zizon following
the consummation of the Exchange Transaction, will be profitable in the
future.
4.16 Address and Principal Place of Business. The address set forth at the
beginning of this Agreement is the Investors' true and correct addresses
and principal places of business, respectively, and the Investor has no
present intention of changing his individual or collective jurisdiction
or principal place of business.
4.17 No Purchaser Representative. The Investor has not authorized any person
or institution to act as the Investors' "purchaser representative" (as
such term is defined in Rule 501 of Regulation D) in connection with the
Investors' acquisition of the Exchange Shares pursuant to this Agreement.
4.18 No General Solicitation. The Investor has not received any general
solicitation or general advertising regarding the acquisition of any of
the Exchange Shares.
4.19 No Finder. There is no finder in connection with the transactions
contemplated by this Agreement.
4.20 Compliance with Law. Except as would not, individually or in the
aggregate, have a Material Adverse Effect upon the Investor and/or Zizon,
neither the Investor, Zizon, nor any of their respective heirs, assigns
or subsidiaries is in violation of, or in default under, any law, in each
case, applicable to the Investor and/or Zizon or any of their respective
subsidiaries or any of their respective assets and properties.
4.21 Subsidiaries. Zizon has no subsidiaries, nor does Zizon have any equity
interest in any other entity of any kind whatsoever.
4.22 Full Disclosure. The representations, warranties and other statements of
the Investor in this Article IV and the other documents, certificates and
written statements furnished to Empire by or on behalf of the Investor
pursuant to this Agreement, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact specific to
the Investors' business, plans, results of operations and/or financial
condition, and not generally available to a sophisticated acquirer of a
business similar in nature to the actual and planned business operations
of the Investor, necessary in order to make the representations,
warranties and other statements of the Investor contained in this
Agreement or such other documents, certificates and written statements
not misleading.
4.23 No Other Representations, Warranties, Covenants or Agreements of
Investor. Except as set forth in this Agreement, or the documents
referred to in this Agreement, the Investor has not made any
representation, warranty, covenant or agreement with respect to the
matters contained in this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF EMPIRE
6
Empire represents, warrants and acknowledges to and covenants and agrees with
the Investor as follows:
5.1 Corporate Status; Authority. Empire Global Corp.
(i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(ii) has all necessary corporate power and authority to carry on the
business of Empire as it is now being conducted; and
(iii) is duly licensed or qualified and in good standing as a foreign
corporation authorized to do business in each jurisdiction wherein
the character and/or the nature of the activities conducted by
Empire makes such licensing or qualification necessary, except
where the failure to be so licensed or qualified and in good
standing would not prevent Empire from performing any of its
material obligations under this Agreement and would not have a
Material Adverse Effect on Empire.
5.2 Authority of Agreement. Empire has the power and authority to accept,
execute and deliver this Agreement and, upon acceptance by the Investor,
to carry out Empire's obligations under this Agreement; and the
execution, delivery and performance by Empire of this Agreement and the
consummation of the transactions contemplated by this Agreement have been
duly authorized by all necessary corporate action on the part of Empire
and this Agreement, upon acceptance by the Investor, constitutes the
valid and legally binding obligations of Empire enforceable against
Empire in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally now or hereafter in effect and
subject to the application of equitable principles and the availability
of equitable remedies; each of the Exchange Shares to be issued pursuant
to this Agreement, upon issuance in accordance with the terms of this
Agreement, will be validly authorized, fully paid and non-assessable.
5.3 Consents and Approvals; No Conflict.
(a) The acceptance, execution and delivery of this Agreement by Empire
does not, and the performance by Empire of its obligations under this
Agreement, upon acceptance by the Investor, will not, require any
consent, approval, authorization or other action by, or filing with or
notification to, any governmental or regulatory authority, other than in
connection with state securities or "blue sky" laws, except where failure
to obtain such consent, approval, authorization or action, or to make
such filing or notification, would not prevent Empire from performing any
of its material obligations under this Agreement and would not have a
Material Adverse Effect on Empire; and
(b) The acceptance, execution, delivery and performance of this
Agreement by Empire and the other agreements and documents to be
executed, delivered and performed by Empire pursuant to this Agreement
and the consummation of the transactions contemplated by this Agreement
and thereby by Empire, including, without limitation, the Exchange
Transaction, do not and will not conflict with, violate or result in a
breach or termination of any provision of, or constitute a default under
(or event which with the giving of notice or lapse of time, or both,
would become a default under) the Certificate of Incorporation or By-laws
of Empire or, except as would not prevent Empire from performing any of
its material obligations under this Agreement and would not have a
Material Adverse Effect on Empire, any law, rule, regulation, order,
7
writ, judgment, injunction, decree, determination or award applicable to
Empire or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any lien or
encumbrance on any of the assets or properties of Empire pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument relating to such assets or
properties to which Empire is a party or by which any of such assets or
properties is bound.
5.4 Absence of Litigation. No claim, action, proceeding or investigation is
pending which seeks to delay or prevent the consummation of the
transactions contemplated by this Agreement or which would be reasonably
likely to adversely affect Empire's ability to consummate the
transactions contemplated by this Agreement or which would have a
Material Adverse Effect on Empire.
5.5 Extent of Offering. Subject in part to the truth and accuracy of the
Investors' representations set forth in Article IV of this Agreement, the
offer, sale and issuance of the Exchange Shares, as contemplated by this
Agreement, are exempt from the registration requirements of the
Securities Act, and Empire will not take any action hereafter that would
cause the loss of such exemption or registration.
5.6 Accuracy of Reports and Information. Empire is in full compliance, to the
extent applicable, with all reporting obligations under Section 12(b),
12 (g) or 15(d), as applicable, of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); Empire has registered the Empire Common
Stock pursuant to Section 12 of the Exchange Act; and Empire has filed
all material required to be filed pursuant to all reporting obligations,
under either Section 13(a) or 15(d) of the Exchange Act, for a period of
at least the twelve months immediately preceding the offer, sale and
delivery of the Exchange Shares.
5.7 SEC Filings/Full Disclosure. None of the Empire SEC Reports contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and Empire has, since at least January 1, 2014, timely filed
all requisite forms, reports and exhibits thereto with the Commission;
and there is no fact known to Empire (other than general economic
conditions known to the public generally) that has not been disclosed in
writing to the Investor which could reasonably be expected to materially
and adversely affect the ability of Empire to perform its obligations
under this Agreement.
5.8 Absence of Undisclosed Liabilities. Empire has no material liabilities or
obligations, absolute or contingent (individually or in the aggregate),
except as set forth in the Empire SEC Reports, including the financial
statements included in the SEC Reports (collectively, the "Empire
Financial Statements"), or as incurred in the ordinary course of business
after the respective dates of the Empire Financial Statements.
5.9 Governmental Consent, Etc. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the
part of Empire is required in connection with the valid execution and
delivery of this Agreement, or the offer, sale or issuance of the
Exchange Shares, or the consummation of any other transaction
contemplated by this Agreement.
8
5.10 Investment Intent. Empire is acquiring the Zizon for Empire's own
account, for investment only and not with a view to, or for sale in
connection with, a distribution thereof or any part thereof, within the
meaning of the Securities Act, and the rules and regulations promulgated
thereunder, or any applicable state securities or blue-sky laws;
5.11 Access to Information. Empire has received the Zizon Financial Statements
and had access to such information regarding the business and finances of
the Investor and Zizon, and has been provided the opportunity to discuss
with the Investor and Zizon management the business, affairs and
financial condition of the Investor and Zizon and such other matters with
respect to the Investor and Zizon as would concern a reasonable person
considering the transactions contemplated by this Agreement, including,
without limitation, the Exchange Transaction, and/or concerned with the
operations of the Investor and Zizon, including, without limitation,
pursuant to meetings and/or discussions with management of Zizon.
5.12 No Other Representations, Warranties, Covenants or Agreements of Empire.
Except as set forth in this Agreement, or the documents referred to in
this Agreement, Empire has not made any representation, warranty,
covenant or agreement with respect to the matters contained in this
Agreement.
ARTICLE VI
CERTAIN COVENANTS
6.1 Cooperation. Each of Empire and the Investor agrees that (i) it will
provide to the other party such Ancillary Services (as defined below) as
are reasonably requested and on the basis of the principles set forth
below, and (ii) it will cooperate with the other party and use its
reasonable best efforts to agree on the terms on conditions of such
Ancillary Services and Intellectual Property Agreement, which (x) will
reflect in reasonable detail a description of the services, functions or
resources to be provided during the transition period (the "Ancillary
Services") and will identify all the fees and costs to be paid with
respect thereto and (y) will set out the minimum requirements of the
draft transition plan with respect to the continuation of the Ancillary
Services. In connection therewith, the parties agree to the following
guiding principles:
(a) The Ancillary Services shall include all services necessary to
operate the relevant business in the manner conducted in the 12-month
period prior to the Closing Date, but shall be limited to the kind of
services provided in such 12-month period;
(b) The Ancillary Services shall be provided on a "cost recovery
basis" as incurred by the party providing such Ancillary Services and/or
third party costs, without additional xxxx-up, and for such time periods
as may be reasonably requested; and
(c) The Ancillary Services shall include all advice, information,
disclosure, cooperation and assistance as may be reasonably required in
connection with the migration of the Ancillary Services to another
service provider or to a self-service basis.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF EMPIRE
9
The obligations of Empire under this Agreement are, at the option of Empire,
subject to the satisfaction at and prior to the Closing Date of the following
conditions:
7.1 Fulfillment of Covenants. All the terms, covenants and conditions of this
Agreement to be complied with and performed by the Investor on or before
the Closing Date shall have been duly complied with and performed, and
there shall have been delivered to Empire a certificate to such effect
dated the Closing Date, signed by the Investor and the President and
Secretary of Zizon;
7.2 Accuracy of Representations and Warranties. All of the representations
and warranties made by the Investor in this Agreement shall be true as of
the Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing Date, and
Investor shall have delivered to Empire a certificate to such effect,
dated the Closing Date, and signed by the President and Secretary of
Zizon;
7.3 No Litigation. There shall be no action, proceeding, investigation or
pending or actual litigation the purpose of which is to enjoin or may be
to enjoin the transactions contemplated by this Agreement or which would
have the effect, if successful, of imposing a material liability upon
Empire, or any of the officers or directors thereof, because of or due
to, in many respects, the consummation of the transactions contemplated
by this Agreement; and there shall be no action, proceeding,
investigation or pending or actual litigation against or with respect to
the Investor, Zizon or the outstanding equity interests in Zizon
(including, without limitation, the shares of Zizon) which could, in any
way, invalidate or damage this Agreement or value of the assets which
Empire is acquiring pursuant to this Agreement, including, without
limitation, the shares of Zizon; and
7.4 Receipt of Zizon Financial Statements. The Investor shall have delivered
to Empire the audited financial statements for the years ended December
31, 2013 and 2012 as well as unaudited interim financial statements for
the period immediately preceding the Closing Date for Zizon.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF INVESTOR
The obligations of the Investor under this Agreement are, at the option of the
Investor subject to the satisfaction at and prior to the Closing Date of the
following conditions:
8.1 Fulfillment of Covenants. All the terms, covenants and conditions of this
Agreement to be complied with and performed by Empire on or before the
Closing Date shall have been duly complied with and performed, and there
shall have been delivered to the Investor a certificate to such effect
dated the Closing Date, signed by the Chairman and Chief Executive
Officer of Empire;
8.2 Accuracy of Representations and Warranties. All of the representations
and warranties made by Empire in this Agreement shall be true as of the
Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing Date, and
Empire shall have delivered to the Investor a certificate to such effect
dated the Closing Date, signed by the Chairman and Chief Executive
Officer of Empire;
10
8.3 No Litigation. There shall be no action, proceeding, investigation or
pending or actual litigation the purpose of which is to enjoin or may be
to enjoin the transactions contemplated by this Agreement or which would
have the effect, if successful, of imposing a material liability upon the
Investor because of or due to, in many respects, the consummation of the
transactions contemplated by this Agreement; and there shall be no
action, proceeding, investigation or pending or actual litigation against
or with respect to Empire, the outstanding shares of Empire Common Stock
or the Exchange Shares which could, in any way, invalidate or damage this
Agreement or value of the assets which the Investor are acquiring
pursuant to this Agreement;
8.4 Empire Outstanding and Authorized Capital Stock. Prior to the Closing
Empire shall have no more than 25,000,000 shares of Common Stock issued
and outstanding and no Preferred Stock issued. As a consequence of the
consummation of this Agreement at the Closing as contemplated in this
Agreement, Empire shall have no more than 30,000,000 shares of Common
Stock issued and outstanding and no Preferred Stock issued; and
8.5 Appointment of Directors and Officers. Consistent with applicable law,
Empire shall cause the board of directors of Empire, prior to the
effectiveness and contemporaneous with to the Closing Date, to (i) elect
to the board of directors of Empire, effective as of the Effective Time,
one individual as shall be designated by Investor at least three business
days prior to the Closing Date and (ii) appoint as an officer of Empire,
effective as of the Effective Time, such individual as shall be
designated by the Investor at least three business days prior to the
Closing Date.
ARTICLE IX
CLOSING
9.1 Closing Date. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at Zizon's office,
#205 Phantom Theme Park, 0, Xxxx-xx 0 Xxxx-xxx, Xxxxxxx-xx, Xxxxxxxx-xx,
Xxxxxxxx-xx, Xxxxx on September 30, 2014 or as may be extended by written
instrument executed by the parties to this Agreement defined in section
10.12 (the "Closing Date").
9.2 Effectiveness. The time of the consummation of the Exchange Transaction,
whether on the Closing Date or such other date, shall, for the purposes
of this Agreement, be deemed to be the "Effective Time."
ARTICLE X
INDEMNIFICATION
10.1 Right of Indemnification. From and after the date hereof, each party
hereto will indemnify and hold harmless the other party, and such other
party's officers, directors, equity owners, employees and agents, against
any and all liability, damage, deficiency, loss, cost or expense
(including reasonable attorneys' fees and expenses) that are based upon
or that arise out of any misrepresentation or breach of any
representation, warranty, covenant or agreement made by such party in
this Agreement.
10.2 Indemnification Procedure. Each party entitled to indemnification under
this Agreement (the "Indemnified Party") shall give prompt notice to the
11
party (the "Indemnifying Party") required to provide indemnification
under this Agreement after such Indemnified Party has received actual
knowledge of any third-party claim as to which indemnity may be sought,
and shall permit the Indemnifying Party (at Indemnifying Party's expense)
to assume the defense of any claim or any litigation resulting therefrom;
provided, that counsel for the Indemnifying Party who shall conduct the
defense of such claim or litigation shall be reasonably satisfactory to
the Indemnified Party, and the Indemnified Party may participate in such
defense, but only at such Indemnified Party's expense; and provided,
further, that the omission by any Indemnified Party to give prompt notice
as provided in this Article X shall not relieve the Indemnifying Party of
its indemnification obligations under this Agreement, except to the
extent that the omission results in a failure of actual prompt notice to
the Indemnifying Party and such Indemnifying Party is damaged as a result
of the failure to give prompt notice. No Indemnifying Party, in the
defense of the such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability with respect to such claim or litigation. In
the event that the Indemnifying Party does not accept the defense of any
matter as provided in this section 10.2, the Indemnified Party shall have
the full right to defend against any such claim or demand, and shall be
entitled to settle or agree to pay in full such claim or demand in the
Indemnified Party's sole discretion. In any event, the Indemnified Party,
Indemnifying Party, Empire and the Investor shall each cooperate in the
defense of such action and the records of each shall be available to the
other with respect to such defense.
10.3 Indemnification Notice. Any notice of a claim by reason of any of the
representations, warranties and agreements contained in this Agreement,
shall state specifically the representation, warranty, covenant or
agreement with respect to which the claim is made and the amount of
liability asserted against the other party by reason of the claim. The
representations, warranties, covenants, agreements and indemnities
contained in this Agreement shall survive the execution and delivery of
this Agreement, any examination by or on behalf of such parties, the
Closing and the completion of the Exchange Transaction as contemplated
herein.
ARTICLE XI
GENERAL
11.1 Payment of Expenses. Each party shall bear its own expenses with respect
to this Agreement and the transactions contemplated by this Agreement.
11.2 Governing Law. This Agreement and the rights, obligations and liabilities
of the parties hereto shall be governed by and construed and interpreted
in accordance with the laws of the Republic of South Korea without regard
to the conflicts of laws principles thereof.
11.3 Consent to Jurisdiction and Waivers. The parties to this Agreement each
irrevocably consents that any legal action or proceeding against any of
them under, arising out of or in any manner relating to, this Agreement
or any other document delivered in connection herewith, may be brought in
the or in the Court of South Korea in the Republic of South Korea. Each
of the parties to this Agreement, by the execution and delivery of this
Agreement, expressly and irrevocably consent and submit to the personal
12
jurisdiction of any of such courts in any such action or proceeding. Each
party further irrevocably consents to the service of any complaint,
summons, notice or other process relating to any such action or
proceeding by delivery thereof to it by hand or by any other manner
provided for in section 11.5. The parties hereto hereby expressly and
irrevocably waive any claim or defense in any such action or proceeding
based on any alleged lack of personal jurisdiction, improper venue or
forum non convenient or any similar basis. Nothing in this section 11.3
shall affect or impair in any manner or to any extent the right of any
party to this Agreement to serve process in any manner permitted by law.
11.4 Amendments and Waivers.
(a) Except as otherwise provided in this Agreement, the provisions of
this Agreement may not be amended, modified or supplemented without the
written consent of each of the parties to this Agreement.
(b) Empire and the Investor may each, by written notice to the other
party:
(i) waive any of the conditions to such party's obligations under
this Agreement or extend the time for the performance of any
of the obligations or actions of the other party,
(ii) waive any inaccuracies in the representations of the other
party contained in this Agreement or in any documents
delivered pursuant to this Agreement,
(iii) waive compliance with any of the covenants of the other party
contained in this Agreement, and
(iv) waive or modify performance of any of the obligations of the
other party.
(c) No action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action or
compliance with any representation, warranty, condition or agreement
contained herein. Waiver of the breach of any one or more provisions of
this Agreement shall not be deemed or construed to be a waiver of other
breaches or subsequent breaches of the same provisions.
11.5 Notices. All notices, demands, requests, demands and other communications
required or otherwise given under this Agreement shall be in writing and
shall be deemed to have been duly given if: (i) delivered by hand,
against written receipt therefore, (ii) forwarded by a third party
company or governmental entity providing delivery services in the
ordinary course of business which guarantees delivery the following
business day, or (iii) mailed by registered or certified mail, return
receipt requested, postage prepaid, addressed (with respect to clauses
(ii) and (iii)) as follows:
If to Empire, to: Xxxxxxx Xxxxxxxxxx, Chairman and CEO
Empire Global Corp.
Suite 701, 130 Adelaide St. West
Toronto, Ontario, Canada M5H 2K4
If to Investor, to: Xxx Xxx, President and COO
Zizon Group Co. Ltd.
#205 Phantom Theme Park, 7,
Gumi-ro 9 Beon-gil, Bundang-gu,
Seongnam-si, Gyeonggi-do, Korea
13
or, in the case of any of the parties to this Agreement, at such other address
as such party shall have furnished to each of the other parties hereto in
accordance with this section 11.5. Each such notice, demand, request or other
communication shall be deemed given (a) on the date of such delivery by hand,
(b) on the first business day following the date of such delivery to the
overnight delivery service or (c) four business days following such mailing.
11.6 Successors and Assigns: Holders and Third Parties as Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
11.7 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Electronic,
fax, PDF and Jpeg signatures to this Agreement shall be deemed to be
original signatures to this Agreement.
11.8 Headings. The headings of the articles, sections, paragraphs and clauses
in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meanings or interpretations of the terms
contained therein.
11.9 Severability; Specific Enforcement. In the event that any one or more of
the provisions contained in this Agreement, or the application thereof in
any circumstances, is held invalid, illegal, or unenforceable for any
reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained in this
Agreement shall not be in any way impaired thereby, it being intended
that all of the rights and privileges of the parties to this Agreement
shall be enforceable to the fullest extent permitted by law. Each of the
parties to this Agreement acknowledge that the other parties would not
have an adequate remedy at law for money damages in the event that any of
the covenants or agreements of any other party in this Agreement were not
performed in accordance with its terms and therefore agrees that the
other parties shall be entitled to specific enforcement of such covenants
or agreements and to injunctive and other equitable relief in addition to
any other remedy to which it may be entitled, at law or in equity.
11.10 Entire Agreement; Survival. This Agreement and the agreements referred to
in this Agreement are intended by the parties as a final expression of
their agreements and are intended to be a complete and exclusive
statement of the agreements and understandings of the parties to this
Agreement in respect of the subject matter contained in this Agreement
and therein. There are no restrictions, promises, representations,
warranties or undertakings, with respect to the subject matter of this
Agreement, other than those set forth or referred to in this Agreement
and therein. This Agreement and the agreements referred to in this
Agreement supersede all prior agreements and understandings between the
parties with respect to such subject matters.
11.11 Binding Nature. This Agreement shall be binding upon and inure to the
benefit of the parties hereto. No party to this Agreement may assign or
transfer any rights under this Agreement.
11.12 Term, Termination and Forfeiture. The term of this Agreement is
indefinite except that, the parties to this Agreement each irrevocably
consents that the Closing Date may be extended by written consent of both
parties, the extension of which not to be unreasonably withheld, this
14
Agreement may be terminated within 90 days past the Closing Date at the
sole discretion of the Investor and the shares of Zizon returned to the
Investor and the shares Empire Common stock issued pursuant to forthwith
to Empire for cancellation.
11.13 Use of Certain Terms and References. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of
this Agreement; the term "or" shall be deemed to include the term
"and/or;" singular or plural tenses shall be deemed to include the
opposite whenever the context so indicates or requires; and article,
section, subsection, paragraph, clause, schedule and exhibit references
are to this Agreement unless otherwise specified.
11.14 Drafting; Representation by Counsel. This Agreement has been drafted on
the basis of mutual contribution of language and is not to be construed
against any party as being the drafter or causing the same to be drafted.
In addition to the representations and warranties contained in
Article IV, the Investor represents, warrants and confirms to Empire
that, in connection with the negotiation, drafting and execution of this
Agreement, the Investor has at all times been represented by competent
counsel of the Investors' own choosing.
11.15 Business Day. For purposes of this Agreement, a "business day" shall mean
any calendar day other than a Saturday, Sunday or other calendar day on
which banks in New York City are authorized or required to be closed
under applicable laws and regulations.
11.16 Material Adverse Effect Defined. For purposes of this Agreement, the
capitalized term "Material Adverse Effect" means, with respect to either
party to this Agreement, any material adverse change in, or material
adverse effect on, the business, financial condition or continuing
operations of such party (which, for the purposes of this section 11.16,
includes all subsidiaries of the party, taken as a whole); provided,
however, that the effects of changes that are generally applicable to (i)
the industries and markets in which the party operates, (ii) the United
States economy or (iii) the United States securities markets shall be
excluded from the determination of Material Adverse Effect; and provided,
further, however, that any change or effect resulting from (A) the
execution of this Agreement, the announcement of this Agreement or the
pendency or consummation of the transactions contemplated by this
Agreement (including any cancellation of or delays in customer orders or
work for clients, any reductions in sales, any disruption in licensor,
vendor, partner or similar relationships or any loss of employees), (B)
natural disasters, acts of war, terrorism or sabotage, military actions
or the escalation thereof or other force majeure events, (C) changes in
US GAAP, changes in the interpretation of US GAAP or changes in the
accounting rules and regulations of the SEC, (D) any other action
required by law, contemplated by this Agreement or taken at the request
of the other party, (E) any litigation brought or threatened by equity
owners of the party asserting allegations of breach of fiduciary duty
relating to this Agreement or violations of applicable securities laws in
connection with this Agreement, (F) any changes in applicable law, (G)
any action required to comply with the rules and regulations of the SEC
or the SEC comment process, (H) if Empire was the party, in and of
itself, any decrease in the market price or trading volume of Empire
Common Stock or (I) if Empire was the party, in and of itself, any
failure by Empire to meet any projections, forecasts or revenue or
earnings predictions, or any predictions or expectations of any
15
securities analysts, shall also be excluded from the determination of
Material Adverse Effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
EMPIRE GLOBAL CORP.
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxxxx
Chairman and CEO
Empire Global Corp.
And
ZIZON GROUP CO. LTD.
By: /s/ Xxxxxx Xxx
-----------------------------------
Xxxxxx Xxx
President and COO
Zizon Group Co. Ltd.
WITNESS
By: /s/ Xxx Xxx
-----------------------------------
Xxx Xxx
Business Origination Director
Delamore & Owl Group of Companies
