Exhibit 10.1
PRIVATE EQUITY CREDIT AGREEMENT
BY AND BETWEEN
EMPS RESEARCH CORPORATION
a Utah corporation
AND
TECHGRAND COMPANY LIMITED
a Hong Kong limited company
Dated as of November 12, 2003
This PRIVATE EQUITY CREDIT AGREEMENT is entered into as of the 12th day
of November, 2003 (this "AGREEMENT"), by and between EMPS Research Corporation,
a Utah corporation (the "COMPANY"), and Techgrand Company Limited, a Hong Kong
limited company ("INVESTOR").
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company may issue and sell to Investor, from
time to time as provided herein, and Investor shall purchase, shares of the
Common Stock (as defined below) with an aggregate purchase price not to exceed
$470,000; and
WHEREAS, such investments will be made in reliance upon the provisions
of Section 4(2) ("SECTION 4(2)") of the Securities Act of 1933 and the rules and
regulations promulgated thereunder (the "SECURITIES ACT"), and/or upon such
other exemption from the registration requirements of the Securities Act as may
be available with respect to any or all of the investments in Common Stock to be
made hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings specified or indicated (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined)
"AFFILIATE" shall mean, with respect to the Person referred to, any
officer, director, or employee of the Person, and any Person who controls that
Person within the meaning of Section 20 of the Exchange Act and Section 15 of
the Securities Act.
"AGREEMENT" shall have the meaning specified in the preamble hereof.
"BID PRICE" shall mean the closing bid price of the Common Stock on the
Principal Market.
"BY-LAWS" shall have the meaning specified in Section 4.8.
"CERTIFICATE" shall have the meaning specified in Section 4.8.
"CLAIM NOTICE" shall have the meaning specified in Section 9.3(a).
"CLOSING" shall mean one of the closings of a purchase and sale of
shares of Common Stock pursuant to Section 2.3.
3
"CLOSING DATE" shall mean, with respect to a Closing, the eleventh
(11th) Trading Day following the Put Date related to such Closing, or such
earlier date as the Company and Investor shall agree, provided all conditions to
such Closing have been satisfied on or before such Trading Day.
"COMMITMENT PERIOD" shall mean the period commencing on the earlier to
occur of (a) the Effective Date, or (b) such earlier date as the Company and
Investor shall agree in writing, and expiring on the earlier to occur of (i) the
date on which Investor shall have purchased Common Stock for an aggregate
purchase price of $470,000, (ii) the date this Agreement is terminated pursuant
to Section 2.7 hereof, or (iii) the date occurring one (1) year from the date of
commencement of the Commitment Period.
"COMMON STOCK" shall mean the Company's common stock, par value $0.001
per share, and any shares of any other class of common stock whether now or
hereafter authorized, having the right to participate in the distribution of
dividends (as and when declared) and assets (upon liquidation of the Company).
"COMMON STOCK EQUIVALENTS" shall mean any securities that are
convertible into or exchangeable for Common Stock or any warrants, options or
other rights to subscribe for or purchase Common Stock or any such convertible
or exchangeable securities.
"COMPANY" shall have the meaning specified in the preamble to this
Agreement.
"CONDITION SATISFACTION DATE" shall have the meaning specified in
Section 7.2.
"DAMAGES" shall mean any loss, claim, damage, liability, costs and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements and costs and expenses of expert witnesses and investigation).
"DISCOUNT" shall mean fifteen percent (15%).
"DISPUTE PERIOD" shall have the meaning specified in Section 9.3(a).
"ESCROW AGENT" shall mean Xxxxx X. Xxxxxxxx, Attorney at Law.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder.
"INDEMNIFIED PARTY" shall have the meaning specified in Section 9.3(a).
"INDEMNIFYING PARTY" shall have the meaning specified in Section
9.3(a).
"INDEMNITY NOTICE" shall have the meaning specified in Section 9.3(b).
4
"INVESTMENT AMOUNT" shall mean the dollar amount (within the range
specified in Section 2.2(a)) to be invested by Investor to purchase Put Shares
with respect to any Put Date as notified by the parties in accordance with
Section 2.2.
"INVESTOR" shall have the meaning specified in the preamble to this
Agreement.
"LEGEND" shall have the meaning specified in Section 8.1.
"MARKET PRICE" on any given date shall mean the average of the three
(3) lowest Bid Prices (not necessarily consecutive) during the ten (10) Trading
Day period immediately following the Put Date.
"MATERIAL ADVERSE EFFECT" shall mean any effect on the business,
operations, properties, prospects or financial condition of the Company that is
material and adverse to the Company and such other entities controlling or
controlled by the Company, taken as a whole, and/or any condition, circumstance,
or situation that would prohibit or otherwise materially interfere with the
ability of the Company to enter into and perform its obligations under either of
(a) this Agreement or (b) the Registration Rights Agreement.
"MAXIMUM COMMITMENT AMOUNT" shall mean Four Hundred and Seventy
Thousand Dollars ($470,000), subject to increase as agreed to by the Company and
Investor.
"MAXIMUM PUT AMOUNT" shall mean, with respect to any Put, the greater
of (a) One Hundred Thousand Dollars ($100,000) Dollars, or (b) one hundred
twenty five percent (125%) of the Weighted Average Daily Volume for the twenty
(20) Trading Days prior to the Put Date, subject to adjustment as agreed by the
Company and Investor.
"MINIMUM PUT AMOUNT" shall mean, with respect to any Put, Seventy Five
Thousand Dollars ($75,000), subject to decrease as agreed to by the Company and
Investor.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"OUTSTANDING" shall mean, with respect to the Common Stock, at any date
as of which the number of shares of Common Stock is to be determined, all issued
and outstanding shares of Common Stock, including all shares of Common Stock
issuable in respect of outstanding scrip or any certificates representing
fractional interests in shares of Common Stock; provided, however, that
Outstanding shall not include any shares of Common Stock then directly or
indirectly owned or held by or for the account of the Company.
"PERSON" shall mean an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
5
"PRINCIPAL MARKET" shall mean the NASD OTCBB, Nasdaq National Market,
the Nasdaq SmallCap Market, the American Stock Exchange or the New York Stock
Exchange, whichever is at the time the principal trading exchange or market for
the Common Stock.
"PURCHASE PRICE" shall mean, with respect to a Put, the greater of $.10
per share, or the Market Price on the applicable Put Date less the product of
the Discount and the Market Price.
"PUT" shall mean each occasion that the Company elects to exercise its
right to tender a Put Notice requiring Investor to purchase shares of Common
Stock, subject to the terms and conditions of this Agreement.
"PUT DATE" shall mean the Trading Day during the Commitment Period that
a Put Notice is deemed delivered pursuant to Section 2.2(b).
"PUT NOTICE" shall mean a written notice, substantially in the form of
Exhibit A hereto, to Investor setting forth the Investment Amount with respect
to which the Company intends to require Investor to purchase shares of Common
Stock pursuant to the terms of this Agreement.
"PUT SHARES" shall mean all shares of Common Stock issued or issuable
pursuant to a Put that has been exercised or may be exercised in accordance with
the terms and conditions of this Agreement.
"REGULATION D" shall mean Regulation D under the Securities Act.
"RULE 144" shall mean Rule 144 under the Securities Act or any similar
provision then in force under the Securities Act.
"SEC" shall mean the Securities and Exchange Commission.
"SECTION 4(2)" shall have the meaning specified in the recitals of this
Agreement.
"SECURITIES ACT" shall have the meaning specified in the recitals of
this Agreement.
"SEC DOCUMENTS" shall mean, as of a particular date, all reports and
other documents filed by the Company pursuant to Section 13(a) or 15(d) of the
Exchange Act since the beginning of the Company's then most recently completed
fiscal year as of the time in question (provided that if the date in question is
within ninety days of the beginning of the Company's fiscal year, the term shall
include all documents filed since the beginning of the second preceding fiscal
year).
"SUBSCRIPTION DATE" shall mean the date on which this Agreement is
executed and delivered by the Company and Investor.
"THIRD PARTY CLAIM" shall have the meaning specified in Section 9.3(a).
6
"TRADING DAY" shall mean any day during which the Principal Market
shall be open for business.
"TRANSACTION DOCUMENTS" means this Private Equity Credit Agreement.
"TRANSFER AGENT" shall mean the transfer agent for the Common Stock
(and any substitute or replacement transfer agent for the Common Stock upon the
Company's appointment of any such substitute or replacement transfer agent).
"VALUATION EVENT" shall mean an event in which the Company at any time
during a Valuation Period takes any of the following actions:
(a) subdivides or combines the Common Stock;
(b) pays a dividend in shares of Common Stock or makes any
other distribution of shares of Common Stock, except for shares issued
pursuant to this transaction;
(c) issues any warrants, options or other rights to subscribe
for or purchase shares of Common Stock and the price per share for
which shares of Common Stock may at any time thereafter be issuable
pursuant to such warrants, options or other rights shall be less than
the Bid Price in effect immediately prior to such issuance;
(d) issues any securities convertible into or exchangeable for
shares of Common Stock and the consideration per share for which shares
of Common Stock may at any time thereafter be issuable pursuant to the
terms of such convertible or exchangeable securities shall be less than
the Bid Price in effect immediately prior to such issuance;
(e) issues shares of Common Stock otherwis than as provided in
the foregoing subsections (a) through (d), at a price per share less,
or for other consideration lower, than the Bid Price in effect
immediately prior to such issuance, or without consideration;
(f) makes a distribution of its assets or evidences of
indebtedness to the holders of Common Stock as a dividend in
liquidation or by way of return of capital or other than as a dividend
payable out of earnings or surplus legally available for dividends
under applicable law or any distribution to such holders made in
respect of the sale of all or substantially all of the Company's assets
(other than under the circumstances provided for in the foregoing
subsections (a) through (e); or
(g) takes any action affecting the number of Outstanding
Common Stock, other than an action described in any of the foregoing
subsections (a) through (f) hereof, inclusive, which in the opinion of
the Company's Board of Directors, determined in good faith, would have
a materially adverse effect upon the rights of Investor at the time of
a Put.
7
"VALUATION PERIOD" shall mean the period of ten (10) Trading Days
immediately following the date on which the applicable Put Notice is deemed to
be delivered and during which the Purchase Price of the Common Stock is valued;
provided, however, that if a Valuation Event occurs during any Valuation Period,
a new Valuation Period shall begin on the Trading Day immediately after the
occurrence of such Valuation Event and end on the tenth (10th) Trading Day
thereafter.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section 2.1 INVESTMENTS.
(a) PUTS. Upon the terms and conditions set forth herein (including,
without limitation, the provisions of Article VII), on any Put Date, the Company
may exercise a Put by the delivery of a Put Notice. The number of Put Shares
that Investor shall receive pursuant to such Put shall be determined by dividing
the Investment Amount specified in the Put Notice by the Purchase Price with
respect to such Put Date.
Section 2.2 MECHANICS.
(a) PUT NOTICE. At any time during the Commitment Period, the Company
may deliver a Put Notice to Investor, subject to the conditions set forth in
Section 7.2; provided, however, the Investment Amount for each Put as designated
by the Company in the applicable Put Notice shall be neither less than the
Minimum Put Amount nor more than the Maximum Put Amount.
(b) DATE OF DELIVERY OF PUT NOTICE. A Put Notice shall be deemed
delivered on (i) the Trading Day it is received by facsimile or otherwise by
Investor if such notice is received on or prior to 12:00 noon Utah time, or (ii)
the immediately succeeding Trading Day if it is received by facsimile or
otherwise after 12:00 noon Utah time on a Trading Day or at anytime on a day
which is not a Trading Day.
Section 2.3 CLOSINGS. At least one (1) business day prior to each
applicable Closing Date for a Put, (a) the Company shall deliver, to the Escrow
Agent, one or more certificates, at Investor's option, representing the Put
Shares to be purchased by Investor pursuant to Section 2.1 herein, registered in
the name of Investor and (b) Investor shall deliver to the Escrow Agent the
Investment Amount specified in the Put Notice by wire transfer of immediately
available funds to an account designated by the Escrow Agent. At least one (1)
business day prior to such Closing Date, each of the Company and Investor shall
deliver to the Escrow Agent all documents, instruments and writings required to
be delivered in order to implement and effect the transactions contemplated
herein. The Escrow Agent will be authorized to release the Escrow Property (as
defined in the Escrow Agreement) only upon the delivery of the Put Shares, the
Investment Amount and other documents pursuant to this Section 2.3 and the
satisfaction of the conditions set forth in this Agreement.
8
Section 2.4 TERMINATION OF COMPANY'S OBLIGATIONS. If Investor fails to
deliver the Investment Amount on the Closing Date for any Put, the Company may
terminate this Agreement. The Company may terminate under this Section 2.4
effective as of the date of delivery of a written notice.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor represents and warrants to the Company that:
Section 3.1 INTENT. Investor is entering into this Agreement for its
own account and Investor has no present arrangement (whether or not legally
binding) at any time to sell the Common Stock to or through any person or
entity; provided, however, that by making the representations herein, Investor
does not agree to hold the Common Stock for any minimum or other specific term
and reserves the right to dispose of the Common Stock at any time in accordance
with federal and state securities laws applicable to such disposition.
Section 3.2 SOPHISTICATED INVESTOR. Investor and each of its members
are sophisticated investors (as described in Rule 506(b)(2)(ii) of Regulation D)
and accredited investors (as defined in Rule 501 of Regulation D), and Investor
and each of its members have such experience in business and financial matters
that they are capable of evaluating the merits and risks of an investment in
Common Stock. Investor acknowledges that an investment in the Common Stock is
speculative and involves a high degree of risk.
Section 3.3 AUTHORITY. (a) Investor has the requisite power and
authority to enter into and perform its obligations under this Agreement and the
transactions contemplated hereby in accordance with its terms; (b) the execution
and delivery of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary action and no
further consent or authorization of Investor or its shareholders, members or
partners is required; and (c) this Agreement has been duly authorized and
validly executed and delivered by Investor and is a valid and binding agreement
of Investor enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by other
equitable principles of general application.
Section 3.4 NOT AN AFFILIATE. Investor is not an officer, director or
"affiliate" (as that term is defined in Rule 405 of the Securities Act) of the
Company, or of any broker-dealer registered with the Securities and Exchange
Commission.
Section 3.5 ORGANIZATION AND STANDING. Investor is a limited company
organized, validly existing and in good standing under the laws of Hong Kong,
and has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. Investor is duly
9
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, other than those in which the
failure so to qualify would not have a material adverse effect on Investor.
Section 3.6 ABSENCE OF CONFLICTS. The execution and delivery of this
Agreement and any other document or instrument contemplated hereby, and the
consummation of the transactions contemplated hereby and thereby, and compliance
with the requirements hereof and thereof, will not (a) violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on
Investor, (b) violate any provision of any indenture, instrument or agreement to
which Investor is a party or is subject, or by which Investor or any of its
assets is bound, or conflict with or constitute a material default thereunder,
(c) result in the creation or imposition of any lien pursuant to the terms of
any such indenture, instrument or agreement, or constitute a breach of any
fiduciary duty owed by Investor to any third party, or (d) require the approval
of any third-party (that has not been obtained) pursuant to any material
contract, instrument, agreement, relationship or legal obligation to which
Investor is subject or to which any of its assets, operations or management may
be subject.
Section 3.7 DISCLOSURE; ACCESS TO INFORMATION. Investor has received
all documents, records, books and other information pertaining to Investor's
investment in the Company that have been requested by Investor. Investor has
reviewed or received copies of the SEC Documents.
Section 3.8 MANNER OF SALE. At no time was Investor presented with or
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising in
connection with the transactions contemplated hereby.
Section 3.9 FINANCIAL CAPABILITY. Investor presently has the financial
capacity and the necessary capital to perform its obligations hereunder and
shall and has provided to the Company such financial and other information that
the Company has requested to demonstrate such capacity.
Section 3.10 DILUTION. The Company is authorized to issue up to
50,000,000 Common Shares. Investor understands and accepts that issuance of
additional Common Shares could result in additional dilution to Investor in its
percentage of ownership interest in the Company. However, whether or not
issuance of additional shares represents further dilution in the book value of
shares will depend upon the value received for the issuance of additional
shares. If the Company needs to raise additional capital to continue or expand
operations, it will likely have to issue additional equity or convertible debt
securities. This will further dilute the percentage ownership of Investor.
Furthermore, any new securities could have rights, preferences and privileges
senior to those of our Common Stock.
10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Investor that:
Section 4.1 ORGANIZATION OF THE COMPANY. The Company is a corporation
duly organized and validly existing and in good standing under the laws of the
State of Nevada, and has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
Except as set forth in Schedule 4.1, the Company does not own more than fifty
percent (50%) of the outstanding capital stock of or control any other business
entity. The Company is duly qualified as a foreign corporation to do business
and is in good standing in every jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary,
other than those in which the failure so to qualify would not have a Material
Adverse Effect.
Section 4.2 AUTHORITY. (a) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this
Agreement and to issue the Put Shares, if any; (b) the execution and delivery of
this Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action and no further consent or authorization of the Company or its
Board of Directors or stockholders is required; and (c) this Agreement has been
duly executed and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable against it in accordance with the terms of
the Agreement, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
Section 4.3 CAPITALIZATION. As of November 1, 2003, the authorized
capital stock of the Company consisted of 50,000,000 shares of Common Stock, of
which 3,300,00 shares were issued and outstanding. Except as shown on the
attached Schedule 4.3, all of the outstanding shares of Common Stock of the
Company have been duly and validly authorized and issued and are fully paid and
nonassessable. As of November 1, 2003, the Company has no stock options or
warrants issued or outstanding, although the Company does have an authorized
stock option plan under which it can issue securities totaling up to 5,000,000
shares of Common Stock.
Section 4.4 COMMON STOCK. The Company has registered the Common Stock
pursuant to Section 12(b) or 12(g) of the Exchange Act and is in full compliance
with all reporting requirements of the Exchange Act, and the Company will use
its best efforts to secure a listing of its Common Stock on a Principal Market.
As of the date of this Agreement, the intended Principal Market is the NASD
OTCBB.
Section 4.5 SEC DOCUMENTS. The Company has delivered or made available
to Investor true and complete copies of the SEC Documents (including, without
11
limitation, proxy information and solicitation materials). The Company has not
provided to Investor any information that, according to applicable law, rule or
regulation, should have been disclosed publicly prior to the date hereof by the
Company, but which has not been so disclosed. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and other federal, state
and local laws, rules and regulations applicable to such SEC Documents, and none
of the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company included
in the SEC Documents comply as to form and substance in all material respects
with applicable accounting requirements and the published rules and regulations
of the SEC or other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except (a) as may be otherwise indicated in such financial statements or the
notes thereto or (b) in the case of unaudited interim statements, to the extent
they may not include footnotes or may be condensed or summary statements) and
fairly present in all material respects the financial position of the Company as
of the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
Section 4.6 EXEMPTION FROM REGISTRATION; VALID ISSUANCES. The sale and
issuance of the Put Shares, if any, in accordance with the terms and on the
bases of the representations and warranties set forth in this Agreement, may and
shall be properly issued by the Company to Investor pursuant to Section 4(2),
Regulation D and/or any applicable state law. When issued and paid for as herein
provided, the Put Shares, if any, shall be duly and validly issued, fully paid,
and nonassessable. Except as described on Schedule 4.6, neither the sales of the
Put Shares, if any, pursuant to, nor the Company's performance of its
obligations under, this Agreement shall (a) result in the creation or imposition
of any liens, charges, claims or other encumbrances upon the Put Shares, if any,
or any of the assets of the Company, or (b) entitle the holders of Outstanding
Common Stock to preemptive or other rights to subscribe to or acquire the Common
Stock or other securities of the Company. The Put Shares shall not subject
Investor to personal liability solely by reason of the ownership thereof.
Section 4.7 NO GENERAL SOLICITATION OR ADVERTISING IN REGARD TO THIS
TRANSACTION. Neither the Company nor any of its affiliates nor any person acting
on its or their behalf (a) has conducted or will conduct any general
solicitation (as that term is used in Rule 502(c) of Regulation D) or general
advertising with respect to any of the Put Shares, if any, or (b) made any
offers or sales of any security or solicited any offers to buy any security
under any circumstances that would require registration of the Common Stock
under the Securities Act.
Section 4.8 CORPORATE DOCUMENTS. The Company has furnished or made
available to Investor true and correct copies of the Company's Certificate of
Incorporation, as amended and in effect on the date hereof (the "CERTIFICATE"),
and the Company's By-Laws, as in effect on the date hereof (the "BY-LAWS").
12
Section 4.9 NO CONFLICTS. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transaction contemplated hereby, including without limitation the issuance of
the Put Shares, if any, does not and will not (a) result in a violation of the
Certificate or By-Laws or (b) conflict with, or constitute a material default
(or an event that with notice or lapse of time or both would become a material
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any material agreement, indenture, instrument
or any "lock-up" or similar provision of any underwriting or similar agreement
to which the Company is a party, or (c) result in a violation of any federal,
state, local or foreign law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations) applicable to the
Company or by which any property or asset of the Company is bound or affected
(except for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect) nor is the Company otherwise in violation of,
conflict with or in default under any of the foregoing; provided, however, that
for purposes of the Company's representations and warranties as to violations of
foreign law, rule or regulation referenced in clause (c), such representations
and warranties are made only to the best of the Company's knowledge insofar as
the execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby are or may
be affected by the status of Investor under or pursuant to any such foreign law,
rule or regulation. The business of the Company is not being conducted in
violation of any law, ordinance or regulation of any governmental entity, except
for possible violations that either singly or in the aggregate do not and will
not have a Material Adverse Effect. The Company is not required under federal,
state or local law, rule or regulation to obtain any consent, authorization or
order of, or make any filing or registration with, any court or governmental
agency in order for it to execute, deliver or perform any of its obligations
under this Agreement or issue and sell the Common Stock in accordance with the
terms hereof (other than any SEC, NASD, Principal Market or state securities
filings that may be required to be made by the Company subsequent to any
Closing, any registration statement that may be filed pursuant hereto, and any
shareholder approval required by the rules applicable to companies whose common
stock trades on the Principal Market); provided that, for purposes of the
representation made in this sentence, the Company is assuming and relying upon
the accuracy of the relevant representations and agreements of Investor herein.
Section 4.10 NO MATERIAL ADVERSE CHANGE. Since June 30, 2003, no event
has occurred that would have a Material Adverse Effect on the Company, except as
disclosed in the SEC Documents.
Section 4.11 NO UNDISCLOSED LIABILITIES. The Company has no liabilities
or obligations that are material, individually or in the aggregate, and that are
not disclosed in the SEC Documents or otherwise publicly announced, other than
those incurred in the ordinary course of the Company's businesses since June 30,
2003 and which, individually or in the aggregate, do not or would not have a
Material Adverse Effect on the Company.
Section 4.12 NO UNDISCLOSED EVENTS OR CIRCUMSTANCES. Since June 30,
2003, no event or circumstance has occurred or exists with respect to the
13
Company or its businesses, properties, prospects, operations or financial
condition, that, under applicable law, rule or regulation, requires public
disclosure or announcement prior to the date hereof by the Company but which has
not been so publicly announced or disclosed in the SEC Documents.
Section 4.13 EXEMPT OFFERING. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security that would eliminate the availability of the exemption from
registration under Regulation D or Section 4(2) of the Securities Act in
connection with the offer and sale of the Common Stock as contemplated hereby.
Section 4.14 LITIGATION AND OTHER PROCEEDINGS. Except as may be set
forth in the SEC Documents, there are no lawsuits or proceedings pending or to
the best knowledge of the Company threatened, against the Company, nor has the
Company received any written or oral notice of any such action, suit, proceeding
or investigation, which would have a Material Adverse Effect. Except as set
forth in the SEC Documents, no judgment, order, writ, injunction or decree or
award has been issued by or, so far as is known by the Company, requested of any
court, arbitrator or governmental agency which would have a Material Adverse
Effect.
Section 4.15 NO MISLEADING OR UNTRUE COMMUNICATION. The Company, any
Person representing the Company, and, to the knowledge of the Company, any other
Person selling or offering to sell the Put Shares, if any, in connection with
the transactions contemplated by this Agreement, have not made, at any time, any
oral communication in connection with the offer or sale of the same which
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
Section 4.16 MATERIAL NON-PUBLIC INFORMATION. The Company is not in
possession of, nor has the Company or its agents disclosed to Investor, any
material non-public information that (a) if disclosed, would reasonably be
expected to have a materially adverse effect on the price of the Common Stock or
(b) according to applicable law, rule or regulation, should have been disclosed
publicly by the Company prior to the date hereof but which has not been so
disclosed.
ARTICLE V
COVENANTS OF INVESTOR
Section 5.1 COMPLIANCE WITH LAW. Investor's trading activities with
respect to shares of the Common Stock will be in compliance with all applicable
state and federal securities laws, rules and regulations and the rules and
regulations of the NASD and the Principal Market on which the Common stock is
listed.
14
ARTICLE VI
COVENANTS OF THE COMPANY
Section 6.1 RESERVATION OF COMMON STOCK. As of the date hereof, the
Company has available and the Company shall reserve and keep available at all
times, free of preemptive rights, shares of Common Stock for the purpose of
enabling the Company to satisfy any obligation to issue the Put Shares. The
number of shares so reserved from time to time, as theretofore increased or
reduced as hereinafter provided, may be reduced by the number of shares actually
delivered hereunder.
Section 6.2 LISTING OF COMMON STOCK. The Company shall use its best
efforts to cause its Common Stock to become listed on a Principal Market. If a
listing is obtained, the Company shall use its best efforts to maintain the
listing and trading of the Common Stock on a Principal Market (including,
without limitation, maintaining sufficient net tangible assets) and will comply
in all respects with the Company's reporting, filing and other obligations under
the bylaws or rules of the NASD and the Principal Market.
Section 6.3 EXCHANGE ACT REGISTRATION. The Company shall take
commercially reasonable steps to cause the Common Stock to continue to be
registered under Section 12(g) or 12(b) of the Exchange Act, will use its
commercially reasonable efforts to comply in all material respects with its
reporting and filing obligations under said Act, and will not take any action or
file any document (whether or not permitted by said Act or the rules thereunder)
to terminate or suspend such registration or to terminate or suspend its
reporting and filing obligations under said Act.
Section 6.4 LEGENDS. The certificates evidencing the Put Shares, when
issued, shall bear an appropriate restrictive legend as provided for in Article
VIII.
Section 6.5 CORPORATE EXISTENCE. The Company shall take all
commercially reasonable steps necessary to preserve and continue the corporate
existence of the Company.
Section 6.6 EXPECTATIONS REGARDING PUT NOTICES. Within ten (10) days
after the commencement of each calendar quarter occurring subsequent to the
commencement of the Commitment Period, the Company undertakes, upon written
request by Investor, to notify Investor as to its reasonable expectations as to
the dollar amount it intends to raise during such calendar quarter, if any,
through the issuance of Put Notices. Such notification shall constitute only the
Company's good faith estimate with respect to such calendar quarter and shall in
no way obligate the Company to raise such amount during such calendar quarter or
otherwise limit its ability to deliver Put Notices during such calendar quarter.
The failure by the Company to comply with this provision can be cured by the
Company's notifying Investor at any time as to its reasonable expectations with
respect to the current calendar quarter.
15
Section 6.7 USE OF PROCEEDS. The Company will use the proceeds received
hereunder (excluding amounts paid by the Company for legal fees, finder's fees
and escrow fees in connection with the sale of the Common Stock) for working
capital and general corporate purposes, and, unless specifically consented to in
advance in each instance by the Investor, the Company shall not, directly or
indirectly, use such proceeds for any loan to or investment in any other
corporation, partnership enterprise or other person or for the repayment of any
outstanding loan by the Company to any other party, except for Company
subsidiaries identified in Schedule 4.1.
ARTICLE VII
CONDITIONS TO DELIVERY OF
PUT NOTICES AND CONDITIONS TO CLOSING
Section 7.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO
ISSUE AND SELL COMMON STOCK. The obligation hereunder of the Company to issue
and sell the Put Shares to Investor incident to each Closing is subject to the
satisfaction, at or before each such Closing, of each of the conditions set
forth below.
(a) ACCURACY OF INVESTOR'S REPRESENTATION AND WARRANTIES. The
representations and warranties of Investor shall be true and correct in
all material respects as of the date of this Agreement and as of the
date of each such Closing as though made at each such time, except for
changes which have not had a Material Adverse Effect.
(b) PERFORMANCE BY INVESTOR. Investor shall have performed,
satisfied and complied in all respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or
complied with by Investor at or prior to such Closing.
(c) NO INJUNCTION. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or adopted by any court or governmental authority of
competent jurisdiction that prohibits or directly and materially
adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced that may have
the effect of prohibiting or materially adversely affecting any of the
transactions contemplated by this Agreement.
Section 7.2 CONDITIONS PRECEDENT TO THE RIGHT OF THE COMPANY TO DELIVER
A PUT NOTICE AND THE OBLIGATION OF INVESTOR TO PURCHASE PUT SHARES. The right of
the Company to deliver a Put Notice and the obligation of Investor hereunder to
acquire and pay for the Put Shares incident to a Closing is subject to the
satisfaction, on (a) the date of delivery of such Put Notice and (b) the
applicable Closing Date (each a "CONDITION SATISFACTION DATE"), of each of the
following conditions:
(a) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company shall be true and
correct in all material respects as of each Condition Satisfaction Date
16
as though made at each such time (except for representations and
warranties specifically made as of a particular date) with respect to
all periods, and as to all events and circumstances occurring or
existing prior to and including each Condition Satisfaction Date,
except for any conditions which have temporarily caused any
representations or warranties herein to be incorrect and which have
been corrected with no continuing impairment to the Company or
Investor.
(b) PERFORMANCE BY THE COMPANY. The Company shall have
performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement at or
prior to each Condition Satisfaction Date.
(c) NO INJUNCTION. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or adopted by any court or governmental authority of
competent jurisdiction that prohibits or directly and materially
adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced that may have
the effect of prohibiting or materially adversely affecting any of the
transactions contemplated by this Agreement.
(d) ADVERSE CHANGES. Since the date of filing of the Company's
most recent SEC Document, no event that had or is reasonably likely to
have a Material Adverse Effect has occurred.
(e) NO KNOWLEDGE. The Company shall have no knowledge of any
event more likely than not to have the effect of causing such
Registration Statement to be suspended or otherwise ineffective (which
event is more likely than not to occur within the fifteen (15) Trading
Days following the Trading Day on which such Notice is deemed
delivered).
(f) SHAREHOLDER VOTE. The issuance of shares of Common Stock
with respect to the applicable Closing, if any, shall not violate the
shareholder approval requirements of the Principal Market.
(g) NO VALUATION EVENT. No Valuation Event shall have occurred
since the Put Date.
(h) OTHER. On each Condition Satisfaction Date, Investor shall
have received and been reasonably satisfied with such other
certificates and documents as shall have been reasonably requested by
Investor in order for Investor to confirm the Company's satisfaction of
the conditions set forth in this Section 7.2.
Section 7.3 DUE DILIGENCE REVIEW; NON-DISCLOSURE OF NON-PUBLIC
INFORMATION.
(a) The Company shall make available for inspection and review
by Investor, advisors to and representatives of Investor (who may or
may not be affiliated with Investor and who are reasonably acceptable
to the Company), all financial and other records, all SEC Documents and
17
other filings with the SEC, and all other corporate documents and
properties of the Company as may be reasonably necessary for the
purpose of such review, and cause the Company's officers, directors and
employees to supply all such information reasonably requested by
Investor or any such representative or advisor for the sole purpose of
enabling Investor and such representatives and advisors and their
respective accountants and attorneys to conduct initial and ongoing due
diligence with respect to the Company.
(b) Each of the Company, its officers, directors, employees
and agents shall in no event disclose non-public information to
Investor, advisors to or representatives of Investor unless prior to
disclosure of such information the Company identifies such information
as being non-public information and provides Investor, such advisors
and representatives with the opportunity to accept or refuse to accept
such non-public information for review. The Company may, as a condition
to disclosing any non-public information hereunder, require Investor's
advisors and representatives to enter into a confidentiality agreement
in form and substance reasonably satisfactory to the Company and
Investor.
(c) Nothing herein shall require the Company to disclose
non-public information to Investor or its advisors or representatives,
and the Company represents that it does not disseminate non-public
information to any investors who purchase stock in the Company in a
public offering, to money managers or to securities analysts. Nothing
contained in this Section 7.3 shall be construed to mean that such
persons or entities other than Investor (without the written consent of
Investor prior to disclosure of such information) may not obtain
non-public information in the course of conducting due diligence in
accordance with the terms and conditions of this Agreement.
ARTICLE VIII
LEGENDS
Section 8.1 LEGENDS. Unless otherwise provided below, each certificate
representing Common Stock will bear the following legend (the "LEGEND"):
The securities represented by this certificate have not been registered
under the Securities Act of 1933 (the "Securities Act") or qualified
under applicable state securities laws. These securities may not be
offered, sold, pledged, hypothecated, transferred or otherwise disposed
of except pursuant to (i) an effective registration statement and
qualification in effect with respect thereto under the Securities Act
and under any applicable state securities law, (ii) to the extent
applicable, Rule 144 under the Securities Act, or (iii) an opinion of
counsel reasonably acceptable to the Company that such registration and
qualification is not required under applicable federal and state
securities laws."
18
Section 8.2 NO OTHER LEGEND OR STOCK TRANSFER RESTRICTIONS. No legend
other than the one specified in Section 8.1 has been or shall be placed on the
share certificates representing the Common Stock and no instructions or "stop
transfers orders," so called, "stock transfer restrictions," or other
restrictions have been or shall be given to the Company's transfer agent with
respect thereto other than as expressly set forth in this Article VIII.
Section 8.3 INVESTOR'S COMPLIANCE. Nothing in this Article VIII shall
affect in any way Investor's obligations under any agreement to comply with all
applicable securities laws upon resale of the Common Stock.
ARTICLE IX
NOTICES; INDEMNIFICATION
Section 9.1 NOTICES. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (a) personally served,
(b) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (c) delivered by reputable air courier service with charges
prepaid, or (d) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified
most recently by written notice given in accordance herewith. Any notice or
other communication required or permitted to be given hereunder shall be deemed
effective (i) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (ii) on the second business day
following the date of mailing by express courier service or on the fifth
business day after deposited in the mail, in each case, fully prepaid, addressed
to such address, or upon actual receipt of such mailing, whichever shall first
occur. The addresses for such communications shall be:
If to the Company: EMPS Research Corporation
000 Xxxxxx Xxx, Xxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxxxx, Esq.
Poulton & Yordan
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000-X
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
19
if to Investor: Techgrand Company Limited
Room 304, Arion Commercial Centre
0-00 Xxxxx'x Xxxx Xxxx
Xxxx Xxxx, Xxxxxxx' Xxxxxxxx of China
Telephone: 0 00 0 000 000 0000
Facsimile: 0 11 8 522 854 0438
Either party hereto may from time to time change its address or facsimile number
for notices under this Section 9.1 by giving at least ten (10) days' prior
written notice of such changed address or facsimile number to the other party
hereto.
Section 9.2 INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless Investor
and its Affiliates and agents from and against any Damages, joint or
several, and any action in respect thereof to which Investor, its
Affiliates or agents, becomes subject to, resulting from, arising out
of or relating to any misrepresentation, breach of warranty or
nonfulfillment of or failure to perform any covenant or agreement on
the part of the Company contained in this Agreement, as such Damages
are incurred, except to the extent such Damages result primarily from
Investor's failure to perform any covenant or agreement contained in
this Agreement or Investor's or its Affiliates' or agents' negligence,
recklessness or bad faith in performing any of their obligations under
this Agreement.
(b) Investor agrees to indemnify and hold harmless the Company
and its Affiliates and agents from and against any Damages, joint or
several, and any action in respect thereof to which the Company and its
Affiliates and agents, becomes subject to, resulting from, arising out
of or relating to any misrepresentation, breach of warranty or
nonfulfillment of or failure to perform any covenant or agreement on
the part of Investor contained in this Agreement, as such Damages are
incurred, except to the extent such Damages result primarily from the
Company's failure to perform any covenant or agreement contained in
this Agreement or the Company's or its Affiliates' or agents'
negligence, recklessness or bad faith in performing their obligations
under this Agreement.
Section 9.3 METHOD OF ASSERTING INDEMNIFICATION CLAIMS. All claims for
indemnification by any Indemnified Party (as defined below) under Section 9.2
shall be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which any
person claiming indemnification under any provision of Section 9.2 (an
"INDEMNIFIED PARTY") might seek indemnity under Section 9.2 is asserted
against or sought to be collected from such Indemnified Party by a
person other than a party hereto or an Affiliate or agent thereof (a
"THIRD PARTY CLAIM"), the Indemnified Party shall deliver a written
notification, enclosing a copy of all papers served, if any, and
specifying the nature of and basis for such Third Party Claim and for
the Indemnified Party's claim for indemnification that is being
asserted under any provision of Section 9.2 against any person (the
"INDEMNIFYING PARTY"), together with the amount or, if not then
20
reasonably ascertainable, the estimated amount, determined in good
faith, of such Third Party Claim (a "CLAIM NOTICE") with reasonable
promptness to the Indemnifying Party. If the Indemnified Party fails to
provide the Claim Notice with reasonable promptness after the
Indemnified Party receives notice of such Third Party Claim, the
Indemnifying Party shall not be obligated to indemnify the Indemnified
Party with respect to such Third Party Claim to the extent that the
Indemnifying Party's ability to defend has been prejudiced by such
failure of the Indemnified Party. The Indemnifying Party shall notify
the Indemnified Party as soon as practicable within the period ending
thirty (30) calendar days following receipt by the Indemnifying Party
of either a Claim Notice or an Indemnity Notice (as defined below) (the
"DISPUTE PERIOD") whether the Indemnifying Party disputes its liability
or the amount of its liability to the Indemnified Party under Section
9.2 and whether the Indemnifying Party desires, at its sole cost and
expense, to defend the Indemnified Party against such Third Party
Claim.
(i) If the Indemnifying Party notifies the
Indemnified Party within the Dispute Period that the
Indemnifying Party desires to defend the Indemnified Party
with respect to the Third Party Claim pursuant to this Section
9.3(a), then the Indemnifying Party shall have the right to
defend, with counsel reasonably satisfactory to the
Indemnified Party, at the sole cost and expense of the
Indemnifying Party, such Third Party Claim by all appropriate
proceedings, which proceedings shall be vigorously and
diligently prosecuted by the Indemnifying Party to a final
conclusion or will be settled at the discretion of the
Indemnifying Party (but only with the consent of the
Indemnified Party in the case of any settlement that provides
for any relief other than the payment of monetary damages or
that provides for the payment of monetary damages as to which
the Indemnified Party shall not be indemnified in full
pursuant to Section 9.2). The Indemnifying Party shall have
full control of such defense and proceedings, including any
compromise or settlement thereof; provided, however, that the
Indemnified Party may, at the sole cost and expense of the
Indemnified Party, at any time prior to the Indemnifying
Party's delivery of the notice referred to in the first
sentence of this clause (i), file any motion, answer or other
pleadings or take any other action that the Indemnified Party
reasonably believes to be necessary or appropriate to protect
its interests; and provided further, that if requested by the
Indemnifying Party, the Indemnified Party will, at the sole
cost and expense of the Indemnifying Party, provide reasonable
cooperation to the Indemnifying Party in contesting any Third
Party Claim that the Indemnifying Party elects to contest. The
Indemnified Party may participate in, but not control, any
defense or settlement of any Third Party Claim controlled by
the Indemnifying Party pursuant to this clause (i), and except
as provided in the preceding sentence, the Indemnified Party
shall bear its own costs and expenses with respect to such
participation. Notwithstanding the foregoing, the Indemnified
Party may takeover the control of the defense or settlement of
a Third Party Claim at any time if it irrevocably waives its
right to indemnity under Section 9.2 with respect to such
Third Party Claim.
(ii) If the Indemnifying Party fails to notify the
Indemnified Party within the Dispute Period that the
Indemnifying Party desires to defend the Third Party Claim
pursuant to this Section 9.3(a), or if the Indemnifying Party
gives such notice but fails to prosecute vigorously and
diligently or settle the Third Party Claim, or if the
Indemnifying Party fails to give any notice whatsoever within
the Dispute Period, then the Indemnified Party shall have the
right to defend, at the sole cost and expense of the
Indemnifying Party, the Third Party Claim by all appropriate
21
proceedings, which proceedings shall be prosecuted by the
Indemnified Party in a reasonable manner and in good faith or
will be settled at the discretion of the Indemnified Party
(with the consent of the Indemnifying Party, which consent
will not be unreasonably withheld). The Indemnified Party will
have full control of such defense and proceedings, including
any compromise or settlement thereof; provided, however, that
if requested by the Indemnified Party, the Indemnifying Party
will, at the sole cost and expense of the Indemnifying Party,
provide reasonable cooperation to the Indemnified Party and
its counsel in contesting any Third Party Claim which the
Indemnified Party is contesting. Notwithstanding the foregoing
provisions of this clause (ii), if the Indemnifying Party has
notified the Indemnified Party within the Dispute Period that
the Indemnifying Party disputes its liability or the amount of
its liability hereunder to the Indemnified Party with respect
to such Third Party Claim and if such dispute is resolved in
favor of the Indemnifying Party in the manner provided in
clause (iii) below, the Indemnifying Party will not be
required to bear the costs and expenses of the Indemnified
Party's defense pursuant to this clause (ii) or of the
Indemnifying Party's participation therein at the Indemnified
Party's request, and the Indemnified Party shall reimburse the
Indemnifying Party in full for all reasonable costs and
expenses incurred by the Indemnifying Party in connection with
such litigation. The Indemnifying Party may participate in,
but not control, any defense or settlement controlled by the
Indemnified Party pursuant to this clause (ii), and the
Indemnifying Party shall bear its own costs and expenses with
respect to such participation.
(iii) If the Indemnifying Party has timely disputed
its liability or the amount of its liability with respect to
such claim, the Indemnifying Party and the Indemnified Party
shall proceed in good faith to negotiate a resolution of such
dispute; provided, however, that it the dispute is not
resolved within thirty (30) days after the Claim Notice, the
Indemnifying Party shall be entitled to institute such legal
action as it deems appropriate.
(b) In the event any Indemnified Party should have a claim
under Section 9.2 against the Indemnifying Party that does not involve
a Third Party Claim, the Indemnified Party shall deliver a written
notification of a claim for indemnity under Section 9.2 specifying the
nature of and basis for such claim, together with the amount or, if not
then reasonably ascertainable, the estimated amount, determined in good
faith, of such claim (an "INDEMNITY NOTICE") with reasonable promptness
to the Indemnifying Party. The failure by any Indemnified Party to give
the Indemnity Notice shall not impair such party's rights hereunder
except to the extent that the Indemnifying Party demonstrates that it
has been irreparably prejudiced thereby. If the Indemnifying Party has
timely disputed its liability or the amount of its liability with
respect to such claim, the Indemnifying Party and the Indemnified Party
shall proceed in good faith to negotiate a resolution of such dispute;
provided, however, that it the dispute is not resolved within thirty
(30) days after the Claim Notice, the Indemnifying Party shall be
entitled to institute such legal action as it deems appropriate.
22
ARTICLE X
MISCELLANEOUS
Section 10.1 GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of Utah
without regard to the principles of conflicts of law. Each of the Company and
Investor hereby submit to the exclusive jurisdiction of the United States
Federal and state courts located in Salt Lake City, Utah with respect to any
dispute arising under this Agreement, the agreements entered into in connection
herewith or the transactions contemplated hereby or thereby.
Section 10.2 ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the Company and Investor and their respective successors and
permitted assigns. Neither this Agreement nor any rights of Investor or the
Company hereunder may be assigned by either party to any other person.
Notwithstanding the foregoing, (a) the provisions of this Agreement shall inure
to the benefit of, and be enforceable by, any transferee of any of the Common
Stock purchased or acquired by Investor hereunder with respect to the Common
Stock held by such person, and (b) Investor's interest in this Agreement, but
not its obligations under this Agreement, may be assigned at any time, in whole
but not in part, to any affiliate of Investor.
Section 10.3 THIRD PARTY BENEFICIARIES. This Agreement is intended for
the benefit of the Company and Investor and their respective successors and
permitted assigns, and is not for the benefit of, nor may any provision hereof
be enforced by, any other person.
Section 10.4 TERMINATION. This Agreement shall terminate twelve (12)
months after the delivery of the final Put Notice (unless extended by the
agreement of the Company and Investor); provided, however, that the provisions
of Article V, VI, VIII, IX and Sections 10.9 and 10.12 shall survive the
termination of this Agreement.
Section 10.5 ENTIRE AGREEMENT, AMENDMENT; NO WAIVER. This Agreement and
the instruments referenced herein contain the entire understanding of the
Company and Investor with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein, neither the Company nor
Investor makes any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be waived or amended
other than by an instrument in writing signed by the party to be charged with
enforcement.
Section 10.6 FEES AND EXPENSES. Each of the Company and Investor agrees
to pay its own expenses in connection with the preparation of this Agreement and
performance of its obligations hereunder, except that the Company shall pay the
Escrow Agent the fee of $500 at each of the Closings.
Section 10.7 NO BROKERS. Each of the Company and Investor represents
that it has had no dealings in connection with this transaction with any finder
23
or broker who will demand payment of any fee or commission from the other party.
The Company on the one hand, and Investor, on the other hand, agree to indemnify
the other against and hold the other harmless from any and all liabilities to
any persons claiming brokerage commissions or finder's fees on account of
services purported to have been rendered on behalf of the indemnifying party in
connection with this Agreement or the transactions contemplated hereby.
Section 10.8 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which may be executed by less than all of the parties and
shall be deemed to be an original instrument which shall be enforceable against
the parties actually executing such counterparts and all of which together shall
constitute one and the same instrument. This Agreement, once executed by a
party, may be delivered to the other parties hereto by facsimile transmission of
a copy of this Agreement bearing the signature of the parties so delivering this
Agreement.
Section 10.9 SURVIVAL; SEVERABILITY. The representations, warranties,
covenants and agreements of the parties hereto shall survive each Closing
hereunder for a period of one year. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that such severability shall be
ineffective if it materially changes the economic benefit of this Agreement to
any party.
Section 10.10 FURTHER ASSURANCES. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
Section 10.11 NO STRICT CONSTRUCTION. The language used in this
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against
any party.
Section 10.12 EQUITABLE RELIEF. Each party recognizes that in the event
that it fails to perform, observe, or discharge any or all of its obligations
under this Agreement, any remedy at law may prove to be inadequate relief. Each
party therefore agrees that the other shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of proving
actual damages.
Section 10.13 TITLE AND SUBTITLES. The titles and subtitles used in
this Agreement are used for the convenience of reference and are not to be
considered in construing or interpreting this Agreement.
Section 10.14 REPORTING ENTITY FOR THE COMMON STOCK. The reporting
entity relied upon for the determination of the trading price of the Common
Stock on any given Trading Day for the purposes of this Agreement shall be
24
Bloomberg L.P. or any successor thereto. The written mutual consent of Investor
and the Company shall be required to employ any other reporting entity.
IN WITNESS WHEREOF, the parties hereto have caused this Private Equity
Credit Agreement to be executed by the undersigned, thereunto duly authorized,
as of the date first set forth above.
EMPS Research Corporation,
a Utah corporation
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: President
Techgrand Company Limited,
a Hong Kong limited company
By: Lok Xxxx Xxxx
-------------------------------
Name: Lok Xxxx Xxxx
Title: Managing Director,
Modern Secretaries Limited
25
EXHIBITS
EXHIBIT A Put Notice
26
