Exhibit 2.2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("the Agreement"), dated as of the 26th
day of May, 2004, by and between EMPS Corporation, a Nevada corporation,
("EMPS"), Kazmorgeophysica CJSC, a Kazakhstan closed joint stock company
("Kazmor") and Transglobal Capital Holdings Ltd., a British Virgin Islands
corporation, a shareholder of Kazmor ("Shareholder"), 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 30,200,000 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. Kazmor is a closed joint stock corporation organized under the laws
of the Republic of Kazakhstan on February 12, 2002. Kazmor has authorized
capital stock of 1,000 shares, $100 par value, of which 1,000 shares are
currently issued and outstanding.
C. Shareholder is a British Virgin Islands corporation, which owns 500
shares of common stock of Kazmor.
D. Shareholder desires to sell all of the outstanding shares of Kazmor
it owns to EMPS and EMPS desires to purchase the outstanding Kazmor shares owned
by Shareholder pursuant to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in reliance upon the representations and warranties
hereinafter set forth, the parties agree as follows:
I. PURCHASE OF SHARES
1.01. Sale of Shares. Subject to the terms and conditions of this
Agreement, at the closing provided for in Section 2 hereof (the "Closing"), the
Shareholder shall deliver to EMPS 500 common shares of Kazmor.
1.02. Consideration. Subject to the terms and conditions of this
Agreement and in consideration of the sale and delivery of the Shares to EMPS,
at the Closing, EMPS shall issue to the Shareholder 1,000,000 restricted shares
of EMPS common stock.
II. THE CLOSING
2.01. Time and Place. The closing of the transactions contemplated by
this Agreement shall take place on or before May 26, 2004 at the offices of EMPS
Corporation, 2319 Foothill Blvd., Suite 250, Salt Lake City, Utah 84109 (the
"Closing").
2.02. Deliveries by EMPS. At the Closing, EMPS shall deliver to the
Shareholder 1,000,000 shares of restricted common stock of EMPS.
2.03. Deliveries by the Shareholders. At the Closing, Shareholder shall
deliver to EMPS the following: (a) a certificate representing the shares of
Kazmor, duly endorsed for transfer to EMPS; and (b) the investment letter
attached as Exhibit 2.03 hereto.
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III. REPRESENTATIONS AND WARRANTIES OF KAZMOR AND THE SHAREHOLDER
Kazmor and the shareholder, jointly and severally represent and warrant
to EMPS as follows:
3.01. Organization.
3.01(a). Kazmor is a corporation duly organized, validly existing, and
in good standing under the laws of the Republic of Kazakhstan and has the
corporate power and authority to carry on its business as presently conducted;
and is qualified to do business in all jurisdictions where the failure to be so
qualified would have a material adverse effect on the business of Kazmor.
3.01(b). The copies of the Certificate of Incorporation, and all
amendments thereto, of Kazmor, and the bylaws of Kazmor and all amendments
thereto, have heretofore been delivered to EMPS, are complete and correct copies
of the Certificate of Incorporation and bylaws of Kazmor as amended and in
effect on the date hereof. All minutes of meetings and actions in writing
without a meeting of the Board of Directors and stockholders of Kamor are
contained in the minute book of Kazmor heretofore delivered to EMPS, and no
minutes or actions in writing without a meeting have been included in such
minute book since such delivery to EMPS that have not also been delivered to
EMPS.
3.02. Capitalization.
3.02(a). The authorized capital stock of Kazmor consists of 1,000
shares of common stock, one hundred ($100) par value, of which 1,000 shares are
outstanding. All of the issued and outstanding shares of common stock of Kazmor
are duly authorized, validly issued, fully paid and non-assessable.
3.02(b). Except for the outstanding shares of common stock described in
Section 3.02(a), there are no shares of capital stock or other securities of
Kazmor outstanding and there are no outstanding options, warrants or rights to
purchase or acquire any securities of Kazmor.
3.03. Subsidiaries and Investments. Kazmor does not own, directly or
indirectly, any interest (whether equity or debt) in any corporation,
partnership, or other form of business organization.
3.04. Financial Statements. Kazmor shall deliver to EMPS, within five
days before the closing, copies of Kazmor's audited financial statements
including, but not limited to, balance sheets, statement of operations,
statement of stockholders equity and statement of cash flows for the years
ending December 31, 2003 and 2002, copies of which are attached hereto as
Exhibit 3.04. Kazmor's financial statements have been prepared in conformity
with accounting principles generally accepted in the United States applied on a
consistent basis and present fairly the financial condition of Kazmor as of the
date of such financial statements and the results of operations for the period
covered by such statements.
3.05. Title to Assets. Except for liens set forth in Exhibit 3.05,
Kazmor is the sole unconditional owner of, with good and marketable title to,
all assets owned by it and used in its business operations as listed in Exhibit
3.05 and all of its property and assets are free and clear of all mortgages,
liens, pledges, charges or encumbrances of any nature whatsoever.
3.06. Absence of Undisclosed Liabilities. As of the date of Closing and
as set forth in Exhibit 3.06, Kazmor shall not be subject to any debt, liability
or obligation of any nature, whether absolute, accrued, contingent or otherwise
and whether due or to become due.
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3.07. Litigation. There is no litigation, proceeding or investigation
pending, or to the knowledge of Kazmor or Shareholder threatened against Kazmor
affecting any of its properties or assets, or, to the knowledge of Kazmor or
Shareholder, against any officer, director, or stockholder of Kazmor that might
result, either in any case or in the aggregate, in any material adverse change
in the business operations, affairs or conditions of Kazmor or any of its
properties or assets, or that might call into question the validity of this
Agreement, or any action taken or to be taken pursuant hereto.
3.08. Contracts and Undertakings. Exhibit 3.08 attached hereto contains
a list of all contracts, instruments, leases, licenses, permits, agreements,
commitments and other undertakings to which Kazmor is a party. Kazmor is not in
material default, or alleged to be in material default, under any contract,
instrument, lease, license, permit, agreement, commitment or undertaking listed
on Exhibit 3.08 and, to the knowledge of the Shareholders, no other party to any
such contract, instrument, lease, license, permit, agreement, commitment or
undertaking is in default thereunder nor, to the knowledge of the Shareholders,
does there exist any condition or event which, after notice or lapse of time or
both, would constitute a default by any party to any such contract, instrument,
lease, license, permit, agreement, commitment or undertaking.
3.09. No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated thereby will not conflict with or
result in a breach of any term or provision of, or constitute a default under,
the Certificate of Incorporation or bylaws of Kazmor, or any contract,
instrument, lease, license, agreement or undertaking to which Kazmor is a party
or by which it or they or any of its or their assets are bound.
3.10. Banks. Exhibit 3.10 attached hereto contains 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 Kazmor has an account or safe deposit box, and
(2) the names and addresses of all signatories.
3.11. Judgments. Kazmor is not subject to or bound by any judgment,
decree or order which materially and adversely affects or which may materially
or adversely affect its business or prospects, its condition, financial or
otherwise, or any of its assets or property.
3.12. Regulatory Matters. Kazmor is in complaince with, in all material
respects applicable statutes, rules and regulations of all applicable
governmental authorities, the failure to comply with which would have a material
adverse effect on the conduct of the business of Kazmor.
3.13 Consents. Except as listed in Schedule 3.13 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 Kazmor
or any shareholder thereof, in connection with the consummation of the
transactions contemplated hereby or for the continued operation of the business
of Kazmor.
3.13 Tax Matters. All taxes and other assessments and levies that
Kazmor 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 Kazmor in separate bank accounts for such payment or are represented by
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, provincial, local
and foreign income, profit, franchise, sales, use and property taxes) due or to
become due, incurred in respect of or measured by Kazmor income or business
prior to the Closing Date.
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3.14. Bankruptcy. No petition under the Federal Bankruptcy laws or any
state insolvency law has been filed by or against Kazmor, nor has a receiver,
fiscal agent or similar officer been appointed by a court for the business or
property of Kazmor, and there are no claims, demands, actions or proceedings
pending or, to the knowledge of the Kazmor or the Shareholder, threatened
against Kazmor.
3.15 Accuracy of Information. No representation or warranty by Kazmor
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.
IV. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
4.01 All statements contained in any written certificate, schedule,
exhibit or other written instrument delivered by Kazmor pursuant hereto, or
otherwise adopted by Kazmor by its written approval, or in connection with the
transaction contemplated hereby, shall be deemed representations and warranties
by the Shareholder and Kazmor. 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. All representations, warranties and covenants
of the Shareholder and Kazmor to EMPS contained herein shall survive the
consummation of the transactions contemplated herein and remain in full force
and effect for the period of two years.
V. CONDUCT AND TRANSACTIONS PRIOR TO THE EFFECTIVE TIME OF THE SHARE PURCHASE
5.01 Conduct and Transactions of Kazmor. During the period from the
date hereof to the date of Closing, Kazmor shall:
(a) conduct the operations of Kazmor in the ordinary course of
business.
5.02 Kazmor 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 Kazmor;
(b) Declare or pay any dividends on shares of its capital stock or make
any other distribution of assets to the holders thereof;
(c) Issue, reissue or sell, or issue options or rights to subscribe to,
or enter into any contract or commitment to issue, reissue or sell, any shares
of its capital stock or acquire or agree to acquire any shares of its capital
stock;
(d) Except as otherwise contemplated and required by this Agreement,
amend its Articles of Incorporation or merge or consolidate with or into any
other corporation or sell all or substantially all of its assets or change in
any manner the rights of its capital stock 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;
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(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
Kazmor.
VI. CONDITIONS TO CLOSING
6.01 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 Kazmor, 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
Kazmor 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. Kazmor 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 Kazmor shall have
complied in all respects with the course of conduct required by this Agreement.
(c) Consents. Any consents necessary for or approval of any party
listed on any Schedule delivered by Kazmor, whose consent or approval is
required pursuant thereto, shall have been obtained.
(f) Statutory Requirements. All statutory requirements for the valid
consummation by Kazmor of the transactions contemplated by this Agreement shall
have been fulfilled.
(g) Governmental Approval. All authorizations, consents, approvals,
permits and orders of all governmental agencies required to be obtained by
Kazmor for consummation of the transactions contemplated by this Agreement shall
have been obtained.
(i) Changes in Financial Condition of Kazmor. There shall not have
occurred any material adverse change in the financial condition or in the
operations of the business of Kazmor, except expenditures in furtherance of this
Agreement.
(j) Absence of Pending Litigation. Kazmor is not engaged in or
threatened with any suit, action, or legal, administrative or other proceedings
or governmental investigations pertaining to this Agreement or the consummation
of the transactions contemplated hereunder.
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VII. MISCELLANEOUS
7.01. Finder's Fees. EMPS has not retained or used the services of any
person, firm or corporation in such manner as to require the payment of any
compensation as a finder or a broker in connection with the transactions
contemplated herein. Shareholder has not retained or used the services of any
person, firm or corporation in such manner as to require the payment of any
compensation as a finder or a broker in connection with the transactions
contemplated herein.
7.02. Parties in Interest. Except as otherwise expressly provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective heirs,
beneficiaries, personal and legal representatives, successors and assigns of the
parties hereto.
7.03. Entire Agreement; Amendments. This Agreement, including the
Exhibits and other documents and writings referred to herein or delivered
pursuant hereto, which form a part hereof, contains the entire understanding of
the parties with respect to its subject matter. There are no restrictions,
agreements, promises, warranties, covenants or undertakings other than those
expressly set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject.
7.04 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 others with any of the covenants contained
in this Agreement, and performance of any obligations by the other; and
(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 7.03 shall be valid if
authorized or ratified by such party or it a corporation, the Board of Directors
of such party.
7.05. Headings, Etc. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
7.06 Pronouns. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
7.07. Counterparts and Governing Law. This Agreement may be executed in
several counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. This Agreement shall be
governed by the laws of the State of Utah, excluding its conflict of laws. In
the event litigation arises between the parties hereto as a result of this
Agreement or of the transaction contemplated by this Agreement, the prevailing
party shall be entitled to recover its expenses of said litigation, including
reasonable attorney's fees from the defaulting party.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto as of the date first above written.
"EMPS" "Kazmor"
EMPS Corporation Kazmorgeophysica CJSC
/s/ Louis Naegle /s/ Yuriy Y. Vasilenko
- -------------------------- -------------------------------------
Louis Naegle, President Yuriy Y. Vasilenko, General Director
"Shareholder"
Transglobal Capital Holdings, Ltd.
/s/ Keren Frett
-------------------------------------
Keren Frett, Director
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