Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization ("the Agreement"), dated as
of the 26th day of May, 2004, by and between EMPS Corporation, a Nevada
corporation ("EMPS") and TatArka LLP, a Kazakstan limited liability partnership
("TatArka") and the sole partner of TatArka, Techgrand Company Limited
("Techgrand"), with reference to the following:
A. EMPS is a Nevada corporation organized in 1998. EMPS has authorized
capital stock of 150,000,000 shares, $.001 par value, of which 30,000,000 shares
are currently issued and outstanding. The common shares of EMPS are registered
under section 12(g) of the Securities Exchange Act of 1934 and are traded on the
OTCBB under the symbol EPSC.
B. TatArka is a privately held limited liability partnership organized
under the laws of Kazakhstan on July 17, 2001.
C. The Board of Directors of EMPS, and Techgrand, the sole partner of
TatArka, have deemed it advisable and in the best interests of the parties that
TatArka be acquired by EMPS, pursuant to the terms and conditions set forth in
this Agreement.
D. Techgrand acquired the partnership interests in TatArka from the
prior TatArka partners in exchange for an obligation of Techgrand to deliver
200,000 restricted common shares of EMPS to said prior partners. The parties
hereto propose to enter into this Agreement which provides, among other things,
that all of the partnership interests of TatArka be acquired by EMPS from
Techgrand in exchange for EMPS agreeing to assume and satisfy the obligation of
Techgrand to the prior TatArka partners and for such additional items as more
fully described in the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
THE ACQUISITION
1.01 At the Closing, the partnership interest of Techgrand, which
represents all of the partnership interests in TatArka, shall be acquired by
EMPS in exchange for 200,000 restricted common shares of EMPS to be issued to
the prior partners of TatArka as set forth in Exhibit A to this Agreement.
1.02 At the Closing, Techgrand will deliver its partnership interests
in TatArka, duly endorsed so as to make EMPS the sole holder thereof, free and
clear of all claims and encumbrances and EMPS shall deliver a transmittal letter
directed to the transfer agent 1 of EMPS directing the issuance of shares to
Techgrand as set forth on Exhibit A of this Agreement.
1.03 Following the reorganization, there will be a total of 30,200,000
shares, $.001 par value, issued and outstanding in EMPS.
1.04 Following the reorganization, TatArka will be a wholly owned
subsidiary of EMPS.
ARTICLE 2
THE CLOSING
2.01 The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at 2319 Foothill Boulevard, Suite
250, Salt Lake City, UT 84109 on or before May 26, 2004, (the "Closing Date") or
at such other place or date and time as may be agreed to in writing by the
parties hereto.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF TATARKA
TatArka hereby represents and warrants to EMPS as follows:
3.01 TatArka shall deliver to EMPS, on or before Closing, each of the
following:
(a) Financial Statements. Audited financial statements of
TatArka including, but not limited to, balance sheets and profit and
loss statements from inception to its fiscal year ended December 31,
2003, prepared in accordance with United States generally accepted
accounting principles and which fairly present the financial condition
of TatArka at the dates thereof. (Schedule A)
(b) Property. An accurate list and description of all
property, real or personal, owned by TatArka of a value equal to or
greater than $1,000. (Schedule B.)
(c) Liens and Liabilities. A complete and accurate list of all
material liens, encumbrances, easements, security interests or similar
interests in or on any of the assets listed on Schedule A. (Schedule
C.) A complete and accurate list of all debts, liabilities and
obligations of TatArka incurred or owing as of the date of this
Agreement. (Schedule C.1.)
(d) Leases and Contracts. A complete and accurate list
describing all material terms of each lease (whether of real or
personal property) and each contract, promissory note, mortgage,
license, franchise, or other written agreement to which TatArka is a
party which involves or can reasonably be expected to involve aggregate
future payments or receipts by TatArka (whether by the terms of such
lease, contract, promissory note, license, franchise or other written
agreement or as a result of a guarantee of the payment of or indemnity
against the failure to pay same) of $1,000 or more annually during the
twelve-month period ended December 31, 2003, or any consecutive
twelve-month period thereafter, except any of said instruments which
terminate or are cancelable without penalty during such twelve-month
period. (Schedule D.)
(e) Loan Agreements. Complete and accurate copies of all loan
agreements and other documents with respect to obligations of TatArka
for the repayment of borrowed money. (Schedule E.)
(f) Consents Required. A complete list of all agreements
wherein consent to the transaction herein contemplated is required to
avoid a default thereunder; or where notice of such transaction is
required at or subsequent to closing, or where consent to an
acquisition, consolidation, or sale of all or substantially all of the
assets is required to avoid a default thereunder. (Schedule F.)
(g) Limited Liability Partnership Agreement. Complete and
accurate copies of the Application for Limited Liability Partnership
and the Limited Liability Partnership Agreement of TatArka together
with all amendments thereto and any other agreements setting forth or
effecting the rights of the sole partner of TatArka to the date hereof.
(Schedule G.)
(h) Partners. A complete list of all persons or entities
holding partnership interests if TatArka or any rights to acquire an
interest in TatArka, and other similar agreements. (Schedule H.)
(i) Managing Partners. A complete and current list of all
managing partners of TatArka. (Schedule I.)
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(j) Salary Schedule. A complete and accurate list (in all
material respects) of the names and the current salary rate for each
present employee of TatArka who received $1,000 or more in aggregate
compensation from TatArka whether in salary, bonus or otherwise, during
the year 2003, or who is presently scheduled to receive from TatArka a
salary in excess of $1,000 during the year ending December 31, 2004,
including in each case the amount of compensation received or scheduled
to be received, and a schedule of the hourly rates of all other
employees listed according to departments. (Schedule J.)
(k) Litigation. A complete and accurate list (in all material
respects) of all material civil, criminal, administrative, arbitration
or other such proceedings or investigations (including without
limitations unfair labor practice matters, labor organization
activities, environmental matters and civil rights violations) pending
or, to the knowledge of TatArka threatened, which may materially and
adversely affect TatArka. (Schedule K.)
(l) Tax Returns. Accurate copies of all tax returns for
TatArka for the last fiscal year. (Schedule L.)
(m) Agency Reports. Copies of all material reports or filings
(and a list of the categories of reports or filings made on a regular
basis) made by TatArka to all governmental agencies (federal, state or
local) during the last fiscal year. (Schedule M.)
(n) Banks. A true and complete list (in all material
respects), as of the date of this Agreement, showing (1) the name of
each bank in which TatArka has an account or safe deposit box, and (2)
the names and addresses of all signatories. (Schedule N.)
(o) Jurisdictions Where Qualified. A list of all jurisdictions
wherein TatAtka is qualified to do business and is in good standing.
(Schedule O.)
(p) Subsidiaries. A complete list of all subsidiaries of
TatArka. (Schedule P.) The term "Subsidiary" or "Subsidiaries" shall
include corporations, unincorporated associations, partnerships, joint
ventures, or similar entities in which TatArka has an interest, direct
or indirect.
(q) Union Matters. An accurate list and description (in all
material respects) of all union contracts and collective bargaining
agreements of TatArka, if any. (Schedule Q.)
(r) Employee and Consultant Contracts. A complete and accurate
list of all employee and consultant contracts which TatArka may have,
other than those listed in the schedule on Union Matters. (Schedule R.)
(s) Employee Benefit Plans. Complete and accurate copies of
all salary, stock options, bonus, incentive compensation, deferred
compensation, profit sharing, retirement, pension, group insurance,
disability, death benefit or other benefit plans, trust agreements or
arrangements of TatArka in effect on the date hereof or to become
effective after the date thereof, together with copies of any
determination letters issued by the Internal Revenue Service with
respect thereto. (Schedule S.)
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(t) Insurance Policies. A complete and accurate list (in all
material respects) and a description of all material insurance policies
naming TatArka as an insured or beneficiary or as a loss payable payee
or for which TatArka has paid all or part of the premium in force on
the date hereof, specifying any notice or other information possessed
by TatArka regarding possible claims thereunder, cancellation thereof
or premium increases thereon, including any policies now in effect
naming TatArka as beneficiary covering the business activities of
TatArka. (Schedule T.)
(u) Customers. A complete and accurate list (in all material
respects) of the customers of TatArka, including presently effective
contracts of TatArka to be assigned to TatArka, accounting for the
principle revenues of TatArka, indicating the dollar amounts of gross
income of each such customer for the period ended December 31, 2003.
(Schedule U.)
(v) Licenses and Permits. A complete list of all licenses,
permits and other authorizations of TatArka. (Schedule V.)
3.02 Organization, Standing and Power. TatArka is a limited liability
partnership duly organized, validly existing and in good standing under the laws
of the Republic of Kazkhstan with all requisite corporate power to own or lease
its properties and carry on its businesses as are now being conducted.
3.03 Qualification. TatArka is duly qualified and is licensed as a
foreign corporation authorized to do business in each jurisdiction wherein it
conducts its business operations. Such jurisdictions, which are the only
jurisdictions in which TatArka is duly qualified and licensed as a foreign
corporation, are shown in Schedule O.
3.04 Outstanding Interests of TatArka. Techgrand is the sole partner,
holding all the partnership interests of TatArka.
3.05 Authority. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly authorized
by all necessary partnership actions, including but not limited to duly and
validly authorized action and approval by sole partner of TatArka. This
Agreement constitutes the valid and binding obligation of TatArka enforceable
against it in accordance with its terms, subject to the principles of equity
applicable to the availability of the remedy of specific performance. This
Agreement has been duly executed by TatArka and the execution and delivery of
this Agreement and the consummation of the transactions contemplated by this
Agreement shall not result in any breach of any terms or provision of TatArka's
Partnership Agreement or of any other agreement, court order or instrument to
which TatArka is a party or bound by.
3.06 Absence of Undisclosed Liabilities. TatArka has no material
liabilities of any nature, whether fixed, absolute, contingent or accrued, which
were not reflected on the financial statements set forth in Schedule A or
otherwise disclosed in this Agreement or any of the Schedules or Exhibits
attached hereto.
3.07 Absence of Changes. Since December 31, 2003, there has not been
any material adverse change in the condition (financial or otherwise), assets,
liabilities, earnings or business of TatArka, except for changes resulting from
completion of those transactions described in Section 5.01.
3.08 Tax Matters. All taxes and other assessments and levies that
TatArka is required by law to withhold or to collect have been duly withheld and
collected, and have been paid over to the proper government authorities or are
held by TatArka in separate bank accounts for such payment or are represented by
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depository receipts, and all such withholdings and collections and all other
payments due in connection therewith (including, without limitation, employment
taxes, both the employee's and employer's share) have been paid over to the
government or placed in a separate and segregated bank account for such purpose.
There are no known deficiencies in income taxes for any periods and further, the
representations and warranties as to absence of undisclosed liabilities
contained in Section 3.06 includes any and all tax liabilities of whatsoever
kind or nature (including, without limitation, all federal, state, local and
foreign income, profit, franchise, sales, use and property taxes) due or to
become due, incurred in respect of or measured by TatArka income or business
prior to the Closing Date.
3.09 Rights to Acquire Interests. Except as otherwise described in
Schedule H, there are no commitments or agreements of any character to TatArka
or sole partner is a party or by which TatArka or its sole partner are bound, or
are a party, calling for the issuance of partnership interests or any other
interest representing the right to purchase or otherwise receive a partnership
interest in TatArka.
3.10 Title to Assets. Except for liens set forth in Schedule C, TatArka
is the sole unconditional owner of, with good and marketable title to, all
assets listed in the schedules as owned by it and all other property and assets
are free and clear of all mortgages, liens, pledges, charges or encumbrances of
any nature whatsoever.
3.11 Agreements in Force and Effect. Except as set forth in Schedules D
and E, all material contracts, agreements, plans, promissory notes, mortgages,
leases, policies, licenses, franchises or similar instruments to which TatArka
is a party are valid and in full force and effect on the date hereof, and
TatArka has not breached any material provision of, and is not in default in any
material respect under the terms of, any such contract, agreement, plan,
promissory note, mortgage, lease, policy, license, franchise or similar
instrument which breach or default would have a material adverse effect upon the
business, operations or financial condition of TatArka.
3.12 Legal Proceedings, Etc. Except as set forth in Schedule K, there
are no civil, criminal, administrative, arbitration or other such proceedings or
investigations pending or, to the knowledge of either TatArka or the sole
partner thereof, threatened, in which, individually or in the aggregate, an
adverse determination would materially and adversely affect the assets,
properties, business or income of TatArka. TatArka has substantially complied
with, and is not in default in any material respect under, any laws, ordinances,
requirements, regulations or orders applicable to its businesses.
3.13 Governmental Regulation. To the knowledge of TatArka and except as
set forth in Schedule K, TatArka is not in violation of or in default with
respect to any applicable law or any applicable rule, regulation, order, writ or
decree of any court or any governmental commission, board, bureau, agency or
instrumentality, or delinquent with respect to any report required to be filed
with any governmental commission, board, bureau, agency or instrumentality which
violation or default could have a material adverse effect upon the business,
operations or financial condition of TatArka.
3.14 Brokers and Finders. TatArka shall be solely responsible for
payment to any broker or finder retained by TatArka for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
herein.
3.15 Accuracy of Information. No representation or warranty by TatArka
contained in this Agreement and no statement contained in any certificate or
other instrument delivered or to be delivered to EMPS pursuant hereto or in
connection with the transactions contemplated hereby (including without
limitation all Schedules and exhibits hereto) contains or will contain any
untrue statement of material fact or omits or will omit to state any material
fact necessary in order to make the statements contained herein or therein not
misleading.
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3.16 Subsidiaries. Except as listed in Schedule P, TatArka does not
have any other subsidiaries or own capital stock representing ten percent (10%)
or more of the issued and outstanding stock of any other corporation.
3.17 Consents. Except as listed in Schedule F, no consent or approval
of, or registration, qualification or filing with, any governmental authority or
other person is required to be obtained or accomplished by TatArka or its sole
partner in connection with the consummation of the transactions contemplated
hereby.
3.18 Improper Payments. Neither TatArka, nor any person acting on
behalf of TatArka has made any payment or otherwise transmitted anything of
value, directly or indirectly, to (a) any official or any government or agency
or political subdivision thereof for the purpose of influencing any decision
affecting the business of TatArka (b) any customer, supplier or competitor of
TatArka or employee of such customer, supplier or competitor, for the purpose of
obtaining, retaining or directing business for TatArka or (c) any political
party or any candidate for elective political office nor has any fund or other
asset of TatArka been maintained that was not fully and accurately recorded on
the books of account of TatArka.
3.19 Copies of Documents. TatArka has made available for inspection and
copying by TatArka and its duly authorized representatives, and will continue to
do so at all times, true and correct copies of all documents which are material
to the terms and conditions contained in this Agreement. Furthermore, all
filings by TatArka with governmental agencies have contained information which
is true and correct, to the best knowledge of TatArka, in all material respects
and did not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements made therein not misleading or
which could have any material adverse effect upon the financial condition or
operations of TatArka or adversely effect the objectives of this Agreement with
respect to EMPS including, but not limited to, the issuance and subsequent
trading of the shares of common stock of EMPS to be received hereby, subject to
compliance by the sole partner of TatArka with applicable law.
3.20 Investment Intent. The sole partner of TatArka represents and
warrants to EMPS that the shares of EMPS being acquired pursuant to this
Agreement are being acquired for its own account and for investment and not with
a view to the public resale or distribution of such shares and further
acknowledges that the shares being issued have not been registered under the
Securities Act and are "restricted securities" as that term is defined in Rule
144 promulgated under the Securities Act and must be held indefinitely unless
they are subsequently registered under the Securities Act or an exemption from
such registration is available.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
EMPS CORPORATION
EMPS hereby represents and warrants to TatArka as follows:
4.01 Organization, Standing and Power. EMPS is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada with all requisite corporate power to own or lease its properties and
carry on its business as is now being conducted and has a registered corporate
office in the State of Utah with all requisite corporate power to own or lease
its properties and carry on its business as is now being conducted.
4.02 Qualification. EMPS is duly qualified and licensed as a foreign
corporation authorized to do business in each jurisdiction wherein it conducts
business operations. Such jurisdictions, which are the only jurisdictions in
which EMPS is duly qualified and licensed as a foreign corporation, is shown in
Schedule 4.02.
4.03 Capitalization of EMPS. The authorized capital stock of EMPS
consists of 150,000,000 shares of Common Stock, par value $.001 per share, of
which the only shares issued and outstanding are 30,000,000 shares, which shares
were duly authorized, validly issued and fully paid and nonassessable. There are
no preemptive rights with respect to the EMPS stock.
4.04 Authority. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate action, including but not limited to duly and validly
authorized action and approval by the Board of Directors of EMPS. This Agreement
constitutes the valid and binding obligation of EMPS, enforceable against it in
accordance with its terms, subject to the principles of equity applicable to the
availability of the remedy of specific performance. This Agreement has been duly
executed by EMPS and the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement shall not result
in any breach of any terms or provisions of the Articles of Incorporation or
Bylaws of EMPS or of any other agreement, court order or instrument to which
EMPS is a party or bound.
4.05 Broker and Finders. EMPS shall be solely responsible for payment
to any broker or finder retained by EMPS for any brokerage fees, commissions or
finders' fees in connection with the transactions contemplated herein.
4.06 Accuracy of Information. No representation or warranty by EMPS
contained in this Agreement and no statement contained in any certificate or
other instrument delivered or to be delivered to EMPS pursuant hereto or in
connection with the transactions contemplated hereby (including without
limitation all Schedules and Exhibits hereto) contains or will contain any
untrue statement of a material fact or omits or will omit to state any material
fact necessary in order to make the statements contained herein or therein not
misleading.
4.07 Consents. Except as listed in Schedule 4.17, no consent or
approval of, or registration, qualification or filing with, any other
governmental authority or other person is required to be obtained or
accomplished by EMPS or any shareholder thereof, in connection with the
consummation of the transactions contemplated hereby.
4.08 Copies of Documents. EMPS has made available for inspection and
copying by TatArka and its duly authorized representatives, and will continue to
do so at all times, true and correct copies of all documents which it has filed
with the Securities and Exchange Commission and all other governmental agencies
which are material to the terms and conditions contained in this Agreement.
Furthermore, all filings by EMPS with the Securities and Exchange Commission,
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and all other governmental agencies, including but not limited to the Internal
Revenue Service, have contained information which is true and correct, to the
best knowledge of the Board of Directors of EMPS, in all material respects and
did not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements made therein not misleading or
which could have any material adverse effect upon the financial condition or
operations of EMPS or adversely effect the objectives of this Agreement with
respect to TatArka including, but not limited to, the issuance and subsequent
trading of the shares of common stock of EMPS to be received hereby, subject to
compliance by the sole partner of TatArka with applicable law.
ARTICLE 5
CONDUCT AND TRANSACTIONS PRIOR TO THE
EFFECTIVE TIME OF THE ACQUISITION
5.01 Conduct and Transactions of TatArka. During the period from the
date hereof to the date of Closing, TatArka shall:
(a) Obtain an investment letter from the sole partner of
TatArka in a form substantially like that attached hereto as Exhibit B.
(b) Conduct the operations of Tatarka in the ordinary course
of business.
TatArka shall not during such period, except in the ordinary course of
business, without the prior written consent of EMPS:
(a) Except as otherwise contemplated or required by this
Agreement, sell, dispose of or encumber any of the properties or assets
of TatArka;
(b) Make any distribution of assets to the sole partner of
TatArka;
(c) Sell, or grant an option or rights to purchase, or enter
into any contract or commitment to issue, reissue or sell, any shares
of its partnership interests or acquire or agree to acquire any of its
partnership interests;
(d) Except as otherwise contemplated and required by this
Agreement, amend its Partnership Agreement or merge or consolidate with
or into any other entity or sell all or substantially all of its assets
or change in any manner the rights of its partnership interests or
other securities;
(e) Except as otherwise contemplated and required by this
Agreement, pay or incur any obligation or liability, direct or
contingent, of more than $1,000;
(f) Incur any indebtedness for borrowed money, assume,
guarantee, endorse or otherwise become responsible for obligations of
any other party, or make loans or advances to any other party;
(g) Make any material change in its insurance coverage;
(h) Increase in any manner the compensation, direct or
indirect, of any of its officers or executive employees; except in
accordance with existing employment contracts;
(i) Enter into any agreement or make any commitment to any
labor union or organization;
(j) Make any material capital expenditures.
(k) Allow any of the foregoing actions to be taken by any
subsidiary of TatArka.
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ARTICLE 6
RIGHTS OF INSPECTION
6.01 During the period from the date of this Agreement to the date of
Closing of the acquisition, EMPS and TatArka agree to use their best efforts to
give the other party, including its representatives and agents, full access to
the premises, books and records of each of the entities, and to furnish the
other with such financial and operating data and other information including,
but not limited to, copies of all legal documents and instruments referred to on
any schedule or exhibit hereto, with respect to the business and properties of
EMPS or TatArka, as the case may be, as the other shall from time to time
request; provided, however, if there are any such investigations: (1) they shall
be conducted in such manner as not to unreasonably interfere with the operation
of the business of the other parties and (2) such right of inspection shall not
affect in any way whatsoever any of the representations or warranties given by
the respective parties hereunder. In the event of termination of this Agreement,
EMPS and TatArka will each return to the other all documents, work papers and
other materials obtained from the other party in connection with the
transactions contemplated hereby, and will take such other steps necessary to
protect the confidentiality of such material.
ARTICLE 7
CONDITIONS TO CLOSING
7.01 Conditions to Obligations of EMPS. The obligation of EMPS to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by EMPS.
(a) Representations and Warranties. There shall be no
information disclosed in the schedules delivered by TatArka which in
the opinion of EMPS would materially adversely affect the proposed
transaction and intent of the parties as set forth in this Agreement.
The representations and warranties of TatArka set forth in Article 3
hereof shall be true and correct in all material respects as of the
date of this Agreement and as of the Closing as though made on and as
of the Closing, except as otherwise permitted by this Agreement.
(b) Performance of Obligations. TatArka shall have in all
material respects performed all agreements required to be performed by
it under this Agreement and shall have performed in all material
respects any actions contemplated by this Agreement prior to or on the
Closing and TatArka shall have complied in all material respects with
the course of conduct required by this Agreement.
(c) Partnership Action. TatArka shall have furnished minutes,
certified copies of partnership resolutions and/or other documentary
evidence satisfactory to counsel for EMPS that TatArka has submitted
with this Agreement and any other documents required hereby to such
parties for approval as provided by applicable law.
(d) Consents. Execution of this Agreement by the sole partner
of TatArka and any consents necessary for or approval of any party
listed on any Schedule delivered by TatArka whose consent or approval
is required pursuant thereto shall have been obtained.
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(e) Financial Statements. EMPS shall have been furnished with
audited financial statements of TatArka including, but not limited to,
balance sheets and profit and loss statements from inception through
the fiscal year end December 31, 2003. Such financial statements shall
have been prepared in conformity with United States generally accepted
accounting principles on a basis consistent with those of prior periods
and fairly present the financial position of TatArka as of the periods
stated.
(f) Statutory Requirements. All statutory requirements for the
valid consummation by TatArka of the transactions contemplated by this
Agreement shall have been fulfilled.
(g) Governmental Approval. All authorizations, consents,
approvals, permits and orders of all federal and state governmental
agencies required to be obtained by TatArka for consummation of the
transactions contemplated by this Agreement shall have been obtained.
(h) Changes in Financial Condition of TatArka. There shall not
have occurred any material adverse change in the financial condition or
in the operations of the business of TatAkra, except expenditures in
furtherance of this Agreement, excluding the acquisitions identified in
Paragraph B of this Agreement.
(i) Absence of Pending Litigation. TatArka is not engaged in
or threatened with anysuit, action, or legal, administrative or other
proceedings or governmental investigations pertaining to this Agreement
or the consummation of the transactions contemplated hereunder.
7.02 Conditions to Obligations of TatArka. The obligation of TatArka to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by TatArka.
(a) Representations and Warranties. There shall be no
information disclosed in the schedules delivered by EMPS, which in the
opinion of TatArka, would materially adversely affect the proposed
transaction and intent of the parties as set forth in this Agreement.
The representations and warranties of EMPS set forth in Article 4
hereof shall be true and correct in all material respects as of the
date of this Agreement and as of the Closing as though made on and as
of the Closing, except as otherwise permitted by this Agreement.
(b) Performance of Obligations. EMPS shall have in all
material respects performed all agreements required to be performed by
it under this Agreement and shall have performed in all material
respects any actions contemplated by this Agreement prior to or on the
Closing and EMPS shall have complied in all respects with the course of
conduct required by this Agreement.
(c) Corporate Action. EMPS shall have furnished minutes,
certified copies of corporate resolutions and/or other documentary
evidence satisfactory to Counsel for TatArka that EMPS has submitted
with this Agreement and any other documents required hereby to such
parties for approval as provided by applicable law.
(d) Consents. Any consents necessary for or approval of any
party listed on any Schedule delivered by EMPS, whose consent or
approval is required pursuant thereto, shall have been obtained.
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(e) Statutory Requirements. All statutory requirements for the
valid consummation by EMPS of the transactions contemplated by this
Agreement shall have been fulfilled.
(g) Governmental Approval. All authorizations, consents,
approvals, permits and orders of all federal and state governmental
agencies required to be obtained by EMPS for consummation of the
transactions contemplated by this Agreement shall have been obtained.
ARTICLE 8
MATTERS SUBSEQUENT TO CLOSING
8.01 Covenant of Further Assurance. The parties covenant and agree that
they shall, from time to time, execute and deliver or cause to be executed and
delivered all such further instruments of conveyance, transfer, assignments,
receipts and other instruments, and shall take or cause to be taken such further
or other actions as the other party or parties to this Agreement may reasonably
deem necessary in order to carry out the purposes and intent of this Agreement.
ARTICLE 9
NATURE AND SURVIVAL OF REPRESENTATIONS
9.01 All statements contained in any written certificate, schedule,
exhibit or other written instrument delivered by TatArka or EMPS pursuant
hereto, or otherwise adopted by TatArka, by its written approval, or by EMPS by
its written approval, or in connection with the transactions contemplated
hereby, shall be deemed representations and warranties by TatArka or EMPS as the
case may be. All representations, warranties and agreements made by either party
shall survive for the period of the applicable statute of limitations and until
the discovery of any claim, loss, liability or other matter based on fraud, if
longer.
ARTICLE 10
TERMINATION OF AGREEMENT AND ABANDONMENT OF REORGANIZATION
10.01 Termination. Anything herein to the contrary notwithstanding,
this Agreement and any agreement executed as required hereunder and the
acquisition contemplated hereby may be terminated at any time before the Closing
as follows:
(a) By mutual written consent of EMPS and TatArka.
(b) By the Board of Directors of EMPS if any of the conditions
set forth in Section 7.01 shall not have been satisfied by the Closing
Date.
(c) By the sole partner of TatArka if any of the conditions
set forth in Section 7.01 shall not have been satisfied by the Closing
Date.
10.02 Termination of Obligations and Waiver of Conditions; Payment of
Expenses. In the event this Agreement and the acquisition are terminated and
abandoned pursuant to this Article 10 hereof, this Agreement shall become void
and of no force and effect and there shall be no liability on the part of any of
the parties hereto, or their respective directors, officers, shareholders or
controlling persons to each other. Each party hereto will pay all costs and
expenses incident to its negotiation and preparation of this Agreement and any
of the documents evidencing the transactions contemplated hereby, including
fees, expenses and disbursements of counsel.
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ARTICLE 11
EXCHANGE OF INTERESTS
11.01 Exchange of Interests. At the Closing, EMPS shall issue a letter
to the transfer agent of EMPS with a copy of the resolution of the Board of
Directors of EMPS authorizing and directing the issuance of EMPS shares as set
forth on Exhibit A to this Agreement.
11.02 Restrictions on Shares Issued to TatArka. Due to the fact that
TatArka will receive shares of EMPS common stock in connection with the
acquisition which have not been registered under the 1933 Act by virtue of the
exemption provided in Section 4(2) of such Act, those shares of EMPS will
contain the following legend:
The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares have been
acquired for investment and may not be sold or offered for sale in the
absence of an effective Registration Statement for the shares under the
Securities Act of 1933 or an opinion of counsel to the Corporation that
such registration is required.
ARTICLE 12
MISCELLANEOUS
12.01 Construction. This Agreement shall be construed and enforced in
accordance with the laws of the State of Utah excluding the conflicts of laws.
12.02 Notices. All notices necessary or appropriate under this
Agreement shall be effective when personally delivered or deposited in the
United States mail, postage prepaid, certified or registered, return receipt
requested, and addressed to the parties last known address which addresses are
currently as follows:
If to "EMPS" If to "TatArka "
EMPS Corporation TatArka LLP
2319 Foothill Blvd., Suite 250 129 Kunayev Street
Salt Lake City, Utah 84109 Almaty 480100 Kazkhstan
With copies to:
Ronald L. Poulton, Esq.
136 East South Temple, Suite 1700-A
Salt Lake City, UT 84111
12.03 Amendment and Waiver. The parties hereby may, by mutual agreement
in writing signed by each party, amend this Agreement in any respect. Any term
or provision of this Agreement may be waived in writing at any time by the party
which is entitled to the benefits thereof, such waiver right shall include, but
not be limited to, the right of either party to:
(a) Extend the time for the performance of any of the
obligations of the other;
(b) Waive any inaccuracies in representations by the other
contained in this Agreement or in any document delivered pursuant
hereto;
(c) Waive compliance by the other with any of the covenants
contained in this Agreement, and performance of any obligations by the
other; and
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(d) Waive the fulfillment of any condition that is precedent
to the performance by the party so waiving of any of its obligations
under this Agreement. Any writing on the part of a party relating to
such amendment, extension or waiver as provided in this Section 12.03
shall be valid if authorized or ratified by the Board of Directors or
partners of such party.
12.04 Remedies not Exclusive. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more remedies by
EMPS or TatArka shall not constitute a waiver of the right to pursue other
available remedies.
12.05 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.06 Benefit. This Agreement shall be binding upon, and inure to the
benefit of, the respective successors and assigns of EMPS and its shareholders
and TatArka and its sole partner.
12.07 Entire Agreement. This Agreement and the Schedules and Exhibits
attached hereto, represent the entire agreement of the undersigned regarding the
subject matter hereof, and supersedes all prior written or oral understandings
or agreements between the parties.
12.08 Each Party to Bear its Own Expense. EMPS and TatArka shall each
bear their own respective expenses incurred in connection with the negotiation,
execution, closing, and performance of this Agreement, including counsel fees
and accountant fees.
12.09 Captions and Section Headings. Captions and section headings used
herein are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
Executed as of the date first written above.
"EMPS" "TatArka "
EMPS Corporation TatArka LLP
a Nevada corporation a Kazahstan limited
liability partnership
By: /s/ Louis Naegle By: /s/ Sergey Yaskevich
--------------------------- -----------------------
Louis Naegle, President Sergey Yaskevich,
Managing Partner
"Techgrand"
Techgrand Company Limited
By: /s/ Lok Yuet Ngor
---------------------------------------
Lok Yuet Ngor, it Authorized Signatory
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