SHARE PURCHASE AGREEMENT
This Share Purchase Agreement, dated as of August 15, 2014 (this "Agreement"),
by and among Empire Global Corp., a Delaware corporation with its principal
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
("Empire" or "Company"), and Multigioco Srl. a corporation organized under the
laws of the Republic of Italy represented by its principal shareholders Doriana
Gianfelici a business person with a principal address at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇, ▇▇▇▇▇ and Newgioco Srl. represented by its principal shareholder,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ a business person with a principal address at ▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇▇ and (collectively the "Investors"), replaces and
supersedes that Share Exchange Agreement Dated May 15 2014 as amended.
RECITALS
WHEREAS, the Investors are the record and beneficial owners, free and clear of
all liens and encumbrances of any kind whatsoever, of a 100% equity
interest in Multigioco Srl., a corporation lawfully organized and
currently existing under the laws of the Republic of Italy
("Multigioco").
WHEREAS, As of the date of this Agreement, Multigioco is a gaming operator
licensed by the Amministrazione Autonoma Monopoli di Stato (AAMS) in
the business of operating online gaming shops and websites and land
based betting corners and agencies throughout Italy;
WHEREAS, Empire desires to purchase and the Investors desire to sell to Empire
the shares of Multigioco, each on the terms and subject to the
conditions as set forth in this Agreement;
WHEREAS, the Board of Directors of Empire has determined that it is advisable
and in Empire's best interests to effect an acquisition of Multigioco
from the Investors 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 Multigioco 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 Investors and
applicable Italian 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 8.1), in accordance with the
provisions of this Agreement and applicable law, the Investors will
contribute, assign, transfer and convey to Empire, and Empire will acquire
and receive from the Investors, 100% of the shares of Multigioco, 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 Multigioco shares to Empire by the Investors
pursuant to section 2.1, Empire shall pay and deliver, at the Closing (as
such capitalized term is defined in section 8.1), the amount of
EUR 1,000,000 (one million Euro) (the "Cash Consideration") less the Empire
Advances (as such capitalized term is defined in section 10.1).
Consideration in Lieu of Cash at closing
a. In Lieu of the Cash Consideration due at closing, as set forth in 3.1
above; Empire will issue 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 2,000,000 (two million) or
approximately 9.7% 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) to be held by an attorney of Investor's choosing
(the "Closing Shares");
b. At the discretion of the Investors, at a date no later than 90 days from
the closing of this Agreement, or sooner if practicable, the Investors
may choose to deliver the Closing Shares to Empire for cancellation in
exchange for the Cash Consideration which was due at the Closing Date
(the "Final Payment").
3.2 Final Payment. Immediately upon receipt of the Final Payment but no later
than 30 days after the Final Payment is received by the Investors or
attorney for the Investors, the Investors or Investors attorney shall file
a notice of transfer of title of Multigioco to Empire as a wholly owned
subsidiary and do all things necessary to complete and register the
transfer by act of a Notary Public of the United Districts of Rome,
Velletri and Civitavecchia and required by Italian 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 INVESTORS
Investors represent, warrant and acknowledge to and covenants and agrees with
Empire as follows:
2
4.1 Corporate Status; Authority. The Investors:
(i) have 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 Investors and Multigioco's equity owners and this Agreement
constitutes the valid and legally binding obligation of the Investors,
enforceable against the Investors 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) are the lawful owners of and have the full right, power, and authority
to sell, assign, transfer and convey to Empire all of the shares of
Multigioco 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 Multigioco 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 Multigioco 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 Multigioco. Multigioco
is owned by the Investors 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 Investors (or, to the best knowledge of the Investors,
any other person or entity) of any character relating to the shares of
Multigioco; and no voting agreements or restrictions of any kind affect the
rights of any of the shares of Multigioco or the holders of all or any
portion of Multigioco;
4.3 Conduct of Multigioco Business. The Investors shall maintain the business
of Multigioco in good standing including the renewal, cancellation,
assignment, relocation or disposal of its shops, agencies and corners
including any or all of its AAMS licences provided however, that such
renewal, cancellation, assignment, relocation or disposal is conducted in
the normal course of business.
4.4 Consents and Approvals, No Conflicts.
(a) The acceptance, execution and delivery of this Agreement by Investors
do not, and the performance by the Investors of their obligations under
this Agreement upon acceptance by the Investors, 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 Investors from
performing any of Investors' material obligations under this Agreement and
would not have a Material Adverse Effect on Multigioco, and;
(b) The acceptance, execution, delivery and performance of this Agreement
by the Investors and the other agreements and documents to be executed,
delivered and performed by the Investors pursuant to this Agreement and the
consummation of the transactions contemplated by this Agreement and thereby
3
by the Investors, 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 Investors 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 Investors pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument relating to such assets or properties to
which the Investors are a party or by which any of such assets or
properties is bound, except as would not prevent the Investors 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 10.15) on the Investors 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 Investors, threatened, that would, individually or in the aggregate,
result in a Material Adverse Effect upon the Investors and/or Multigioco;
4.6 Investment Intent. The Investors are 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 Investors are each 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, Investors will immediately advise Empire of such
change in accredited investor status;
4.8 Intent to Transfer. The Investors are each 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. Investors acknowledge 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 Investors have read the
Empire SEC Reports, including all exhibits thereto, and understands the
contents of the Empire SEC Reports;
4.10 Absence of Undisclosed Liabilities. Multigioco has no material liabilities
or obligations, absolute or contingent (individually or in the aggregate),
except as set forth in the Multigioco financial statements audited for the
years ended December 31, 2013 and 2012 and unaudited for the period ended
June 30, 2014 delivered by the Investors (collectively, the "Multigioco
Financial Statements"), or as incurred in the ordinary course of business
after the respective dates of the Multigioco Financial Statements;
4
4.11 Offering Exempt from Registration; Empire's Reliance. The Investors have
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 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 Investors. The Investors, through each of their 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 Investors 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 Investors have 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 Investors 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 Investors from the Investors'
investment in the Exchange Shares;
5
(ii) there will be any approximate or exact length of time that the
Investors 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;
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 Multigioco 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 are the Investors' true and correct addresses
and principal places of business, respectively, and the Investors have no
present intention of changing his individual or collective jurisdiction or
principal place of business;
4.17 No Purchaser Representative. The Investors have 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 Investors have 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 Investors and/or Multigioco,
neither the Investors, Multigioco, 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 Investors and/or Multigioco or any of their
respective subsidiaries or any of their respective assets and properties;
4.21 Subsidiaries. Multigioco has no subsidiaries, nor does Multigioco have any
equity interest in any other entity of any kind whatsoever;
4.22 Full Disclosure. The representations, warranties and other statements of
the Investors in this Article IV and the other documents, certificates and
written statements furnished to Empire by or on behalf of the Investors
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 Investors, necessary in order to make the representations,
warranties and other statements of the Investors contained in this
Agreement or such other documents, certificates and written statements not
misleading; and
4.23 No Other Representations, Warranties, Covenants or Agreements of Investors.
Except as set forth in this Agreement, or the documents referred to in this
Agreement, the Investors have not made any representation, warranty,
covenant or agreement with respect to the matters contained in this
Agreement.
6
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF EMPIRE
Empire represents, warrants and acknowledges to and covenants and agrees with
the Investors 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 Investors,
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 Investors, 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 Investors, 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
7
Agreement and would not have a Material Adverse Effect on Empire, any law,
rule, regulation, order, 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 Investors
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 Multigioco 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 Multigioco Financial
Statements and had access to such information regarding the business and
finances of the Investors and Multigioco, and has been provided the
opportunity to discuss with the Investors and Multigioco management the
business, affairs and financial condition of the Investors and Multigioco
and such other matters with respect to the Investors and Multigioco 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 Investors and Multigioco,
including, without limitation, pursuant to meetings and/or discussions with
management of Multigioco; and
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
CONDITIONS TO OBLIGATIONS OF EMPIRE
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:
6.1 Fulfillment of Covenants. All the terms, covenants and conditions of this
Agreement to be complied with and performed by the Investors 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 Investors and the President and
Secretary of Multigioco;
6.2 Accuracy of Representations and Warranties. All of the representations and
warranties made by the Investors 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 Investors shall
have delivered to Empire a certificate to such effect, dated the Closing
Date, and signed by the President and Secretary of Multigioco;
6.3 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 Investors,
Multigioco or the outstanding equity interests in Multigioco (including,
without limitation, the shares of Multigioco) 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 Multigioco; and
9
6.4 Receipt of Multigioco Financial Statements. The Investors 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 ended June 30, 2014 for Multigioco.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF INVESTORS
The obligations of the Investors under this Agreement are, at the option of the
Investors 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 Empire on or before the
Closing Date shall have been duly complied with and performed, and there
shall have been delivered to the Investors a certificate to such effect
dated the Closing Date, signed by the Chairman and Chief Executive Officer
of Empire;
7.2 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 Investors a certificate to such effect dated the Closing
Date, signed by the Chairman and Chief Executive Officer of Empire;
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 the
Investors 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 Investors are acquiring pursuant
to this Agreement;
7.4 Empire Outstanding Debt. As of the Closing Date, Empire shall have no more
than $275,000 in outstanding shareholder advances and $70,000 in Debentures
Dated July 9, 2004, including, without limitation, notes payable, accounts
payable, accrued expenses, accrued officer's compensation and loans payable
to related parties to loans from shareholders, excluding the Empire
Advances (as such capitalized term is defined in section 10.1);
7.5 Empire Outstanding and Authorized Capital Stock. Prior to the Closing
Empire shall have no more than 18,675,800 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 23,675,800 shares of Common Stock
issued and outstanding and no Preferred Stock issued; and
7.6 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 Investors at least three business days
10
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 Investors at least three business days prior to the Closing Date.
ARTICLE VIII
CLOSING
8.1 Closing Date. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at Empire's office, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇., ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ on August 15, 2014
or sooner if practicable and as may be mutually agreed upon in writing by
the parties to this Agreement defined in section 10.12 (the "Closing
Date").
8.2 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 IX
INDEMNIFICATION
9.1 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.
9.2 Indemnification Procedure. Each party entitled to indemnification under
this Agreement (the "Indemnified Party") shall give prompt notice to the
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 IX 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 9.2, 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
11
Party, Empire and the Investors 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.
9.3 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 X
GENERAL
10.1 Payment of Expenses. Each party shall bear its own expenses with respect
to this Agreement and the transactions contemplated by this Agreement.
Notwithstanding the immediately preceding sentence, it is acknowledged by
both Empire and the Investors that Empire, or affiliates of Empire, have,
on behalf of Multigioco, paid to the law firm of Locasciulli Studio Legale
attorneys ("LSL"), the sum of $10,000 (the "LSL Payment") to be applied
against LSL's fees for services rendered in connection with the
preparation of the Scrittura Privata Tra Le Parti and Preliminare de
Cessione di Quote dated December 12, 2013, without limitation any related
matters, and, to the extent that such fees are less than $10,000, to
outstanding fees owed to LSL by Multigioco. In addition, Empire has paid
to Pitagora Revisione Srl the amount of EUR 17,000 to conduct an audit of
the Multigioco financial statements for the years ended December 31, 2012
and 2013 as well as a review of the interim periods ended June 30, 2014
and June 30, 2013 prior to completion of the business combination as
required by Rule 301 of the Securities and Exchange Act. Furthermore,
Empire, or affiliates of Empire, have, on behalf of Multigioco, paid to
other service providers to and vendors of Multigioco, the aggregate sum of
$50,000 (the "Other Vendor Payments" and, collectively with the LSL
Payment, the "Empire Advances"). In the event that the Exchange
Transaction is not consummated on or prior to September 30, 2014, due to a
willful failure on the part of the Investors or any affiliate(s) of the
Investors, then the Empire Advances shall be deemed a loan made by Empire
to the Investors, which shall bear interest at the rate of 5% per annum
and be due and payable on December 30, 2015. In the event that Empire
shall, in Empires' sole discretion, advance any additional funds to or for
the benefit of the Investors at any time prior to the Closing, such
additional funds shall be deemed a part of the Empire Advances and subject
to repayment as all other Empire Advances are subject to repayment in
accordance with this section 10.1.
10.2 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 Italy without regard to the
conflicts of laws principles thereof.
10.3 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
12
any other document delivered in connection herewith, may be brought in the
or in the "Tribunale di Roma" or Court of Rome in the Republic of Italy.
Each of the parties to this Agreement, by the execution and delivery of
this Agreement, expressly and irrevocably consent and submit to the
personal 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 10.4. 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 10.3
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.
10.4 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 Investors' 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.
10.5 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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chairman and CEO
Empire Global Corp.
Suite 701, 130 Adelaide St. West
Toronto, Ontario, Canada M5H 2K4
13
If to Investors, to: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President and COO
Multigioco Srl.
▇▇▇ ▇.▇ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, (▇▇), ▇▇▇▇, ▇▇▇▇▇
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 10.4. 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.
10.6 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.
10.7 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.
10.8 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.
10.9 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.
10.10 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.
10.11 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.
14
10.12 Term, Termination and Forfeiture. The term of this Agreement is indefinite
except that, the parties to this Agreement each irrevocably consents that
in the event that Empire does not make the Final Payment of the Cash
Consideration in cash as stated in Paragraph 3.1 by September 30, 2014
unless extended by written consent of both parties, the extension of which
not to be unreasonably withheld, this Agreement may be terminated at the
sole discretion of the Investors and the shares of Multigioco returned to
the Investors and the shares Empire Common stock issued pursuant to
forthwith to Empire for cancellation. Other than due to a willful failure
on the part of the Investors or any affiliate(s) of the Investors, the
expense amounts paid by Empire pursuant to Paragraph 10.1 shall be
forfeited by Empire.
10.13 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.
10.14 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 Investors represents, warrants and confirms to Empire that, in
connection with the negotiation, drafting and execution of this Agreement,
the Investors have at all times been represented by competent counsel of
the Investors' own choosing.
10.15 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.
10.16 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 10.15,
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
15
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 securities analysts, shall also be
excluded from the determination of Material Adverse Effect.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
EMPIRE GLOBAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Chairman and CEO
Empire Global Corp.
And
THE INVESTORS
By: /s/ Doriana Gianfelici
------------------------------
Doriana Gianfelici, CFO
Multigioco Srl.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, CEO
Multigioco, Srl.
16