EXHIBIT 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into this 26th day of September, 2003, by and among EMPS Corporation, a Nevada
corporation (the "Company"), that certain Voting Trust (the "Seller")
established pursuant to a Voting Trust Agreement dated November 30, 2002,
relating to the Common Stock (as defined below) (the "Voting Trust Agreement"),
Xxxxx X. Xxxxxxxx, Xx., an individual, as trustee of the Seller pursuant to the
Voting Trust Agreement (the "Trustee"), the Grantors of the Seller listed below
(the "Grantors" and each Grantor, together with the Company, the Seller and the
Trustee the "Seller Parties"), on the one hand, and Firebird Global Master Fund,
Ltd., a Cayman Islands corporation, and Firebird Republics Fund, Ltd., a Cayman
Islands corporation (each a "Purchaser" and together the "Purchasers"), on the
other hand.
RECITALS:
WHEREAS, Trustee is trustee of, and each of Petroleum Group Services
Ltd., Xxxx International Ltd., Techgrand Company Ltd., Xxxx Xxxxxxx, and Xxxxx
Xxxxxxx (the "Grantors") are grantors of, the Seller, and each undertaking
provided by the Trustee hereunder shall be in Trustee's capacity as trustee of,
and on behalf of, the Seller; and
WHEREAS, the Seller is the owner of 27,089,700 shares of Common Stock
(as defined below); and
WHEREAS, Seller desires to sell to Purchasers, and the Purchasers
desire to purchase from Seller, an aggregate of one million seven hundred
thousand shares (the "Transferred Shares") of the Common Stock (as defined
below) held by the Seller, upon the terms and conditions set forth herein.
AGREEMENT:
In consideration of the mutual promises contained herein, the parties
hereby agree as follows:
1. Purchase and Sale; Closing.
(a) Purchase and Sale. Subject to the terms and conditions
hereinafter set forth, the Seller hereby agrees to sell, convey, transfer, and
deliver to the Purchasers, and the Purchasers hereby agree to purchase from the
Seller, the Transferred Shares, at the Purchase Price set forth below. Seller
agrees that the Transferred Shares shall be represented by two (2) certificates
representing the number of Transferred Shares set forth on Exhibit A hereto,
such certificates to be duly issued through the Company's transfer agent,
Interwest Transfer Company, Inc., in the names, addresses and amounts set forth
on Exhibit A hereto.
(b) Closing. The closing of the sale and purchase of the
Transferred Shares described in Section 1(a) (the "Closing") shall take place at
the offices of Coudert Brothers LLP, counsel to the Purchasers, simultaneously
with the execution and delivery of this Agreement or at such other location or
time as may be agreed by the parties.
2. Amount, Payment and Application of Purchase Price. The total
consideration and method of payment shall be as follows:
(a) Consideration. At the Closing, as total consideration for the
purchase and sale of the Transferred Shares, the Purchasers shall pay to the
Trustee the sum of One Million Seven Hundred Thousand Dollars ($1,700,000), (the
"Purchase Price"). The Purchase Price shall be paid by wire transfer of
immediately available funds to the Trustee's trust account set forth on Exhibit
B hereto.
(b) Delivery. At the Closing, the Seller shall deliver the
Transferred Shares, represented by the certificates described in Section 1(a)
above.
(c) Application. Immediately following the Closing, but in no
event more than one day following the Closing, the Trustee shall take any and
all actions as are necessary to cause the application of the entire Purchase
Price to repay in full the debt set forth on the Schedule of Debt attached to
the Voting Trust Agreement (such debt, together with accrued interested thereon
through the date of this Agreement, the "Debt") in accordance with the
provisions thereof. Evidence reasonably satisfactory to the Purchasers of the
repayment in full of the Debt shall be delivered to the Purchasers upon the
Purchasers' request.
3. Representations and Warranties of Seller Parties.
Each Seller Party hereby jointly and severally represents and warrants
to the Purchasers as follows:
(a) Organization of Company. The Corporation is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Nevada and is licensed or qualified to do business and in good standing
in each other jurisdiction in which it is required to be so licensed or
qualified. The Company has all requisite power and authority to own its
properties and carry on its businesses as presently and as proposed to be
conducted.
(b) Capitalization. The capitalization of the Company consists of
150,000,000 shares of common stock, par value $0.001 per share ("Common Stock"),
of which 30,000,000 shares, including the Transferred Shares, are duly and
validly issued and outstanding, fully paid, and non-assessable. Other than as
described in this paragraph 3(b), the Company does not have authorized or
outstanding any stock or securities, or any options, warrants, convertible
securities, or any other right (whether contingent or otherwise) to purchase or
convert any obligations into stock or securities of the Company, nor is the
Company obligated to issue any stock, securities, options, warranties, or other
such rights. Except for the Voting Trust Agreement and as set forth herein,
there are no voting trusts, proxies or other agreements or understandings with
respect to the voting of any shares of capital stock of the Company, nor any
pre-emptive rights, registration rights, or other transfer rights of any person.
(c) Ownership of Stock. Seller is the record owner, and each
Grantor the beneficial owner, of the Transferred Shares free and clear of all
liens, claims, equities, encumbrances, security interests and restrictions of
every kind.
(d) Authority. Each Seller Party has full, complete and
unrestricted legal right, power and authority to execute and deliver this
Agreement and to duly perform and observe the terms and conditions hereof.
(e) Validity. This Agreement constitutes the legal, valid and
binding obligation of each Seller Party, enforceable in accordance with its
terms, except as enforcement thereof may be limited
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by bankruptcy, insolvency, conservatorship, receivership, liquidation,
reorganization, moratorium or similar laws or equitable principles affecting the
enforcement of creditors' rights generally.
(f) Consents and Approvals. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
performance by each Seller Party of the terms and conditions hereof shall not
(i) require the approval or consent of any governmental authority or the
approval or consent of any other person; or (ii) conflict with or result in a
breach or violation of any of the terms or conditions of or constitute (or with
notice or lapse of time or both would constitute) a default under any agreement
(including without limitation the Voting Trust Agreement), statute, regulation,
order, judgment or decree applicable to such party or any instrument, contract
or other agreement to which party is a party or to which such party is bound or
subject.
(g) Financial Statements and Information. The financial
statements of the Company filed with the Securities and Exchange Commission on
the Company's most recently-filed Form 10KSB and Form 10QSB (the "Most Recent
Financial Statements") have been duly filed with the SEC and certified in
accordance with applicable law and regulation. Except for obligations or
liabilities reflected in the Most Recent Financial Statements or incurred in the
ordinary course of business since the date thereof, the Company had no material
(individually or in the aggregate) obligations or liabilities, absolute, accrued
or contingent, as of the date of such Most Recent Financial Statements and has
no such obligations or liabilities as of the date hereof. There has been no
undisclosed material adverse change in the business, assets, properties,
operations, condition (financial or other) or prospects of the Company since the
date of such Most Recent Financial Statements. The copy of the Voting Trust
Agreement previously provided to Purchasers is true, complete and correct and,
such Voting Trust Agreement has not been amended or altered since the date on
which such copy was provided.
(h) Title to and Condition of Properties. The Company has good
and marketable title to the assets reflected as owned (or current, valid and
binding leases with respect to assets reflected as leased) on its Most Recent
Financial Statements (other than properties and assets disposed of in the
ordinary course of business since the date of such balance sheet), free and
clear of any mortgages, pledges, security interests, liens, charges and other
encumbrances, except (i) liens for current taxes not yet due or which are being
contested in good faith, (ii) mechanic's, materialmen's and similar liens which
may have arisen in the ordinary course of business and which, in the aggregate,
would not be material to the financial condition of the Company and (iii)
security interests securing indebtedness not in default for the purchase price
of or rental payments on property purchased or leased under capital lease
arrangements in the ordinary course of business. All real and personal property,
fixtures and equipment comprising the assets of the Company are in good state of
repair (ordinary wear and tear excepted) and operating condition and are
sufficient and adequate to conduct the business of the Company on the date
hereof.
(i) Pending Actions. Except as publicly disclosed, there is no
action, suit or proceeding pending or, to the knowledge of the Company,
threatened against or affecting the Company, or any of its properties or rights,
before any court or by or before any governmental body or arbitration board or
tribunal, nor is there any judgment, decree, injunction or order of any court,
governmental department, commission, agency, instrumentality or arbitrator
against the Company. In addition, to the knowledge of the Company, there does
not exist any basis for any action, suit, investigation or proceeding against
the Company, in each case which, if adversely determined, would reasonably be
expected to have a material adverse effect on the business, assets, properties
or operating condition (financial or otherwise) of the Company (a "Material
Adverse Effect"). The, foregoing includes without limitation, actions pending or
threatened against any Seller Party or against any employee, prospective
employee or consultant to the Company involving such person's relationship to
the Company.
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(j) Taxes. The Company has duly and timely filed or caused to be
filed (or obtained valid, currently effective extensions for filing) all
Federal, state, local and foreign income, franchise, excise, payroll, sales and
use, property and withholding tax returns, reports, estimates and information
and other statements or returns (collectively "Tax Returns") required to be
filed by or on behalf of it pursuant to any applicable federal, state, local or
foreign tax laws for all years and periods for which such Tax Returns have
become due. All such Tax Returns were correct in all material respects as filed
and correctly reflect the Federal, state, local and foreign income, franchise,
excise, payroll, sales and use, property, withholding and other taxes, duties,
imposts and governmental charges (and charges in lieu of any thereof), together
with interest and penalties (collectively "Taxes") required to be paid or
collected by (or allocable to) the Company. The Company (i) has paid or caused
to be paid all Taxes required to be paid by it through the date hereof except
for those Taxes, if any, being contested in good faith and (ii) has properly and
fully accrued on its Most Recent Financial Statements (and on its books and
records if arising after the date thereof), all Taxes for any period from the
date of the last reporting period covered by such Tax Returns up to and
including the date hereof. There is no pending or potential audit, dispute or
claim concerning any tax return or tax liability of the Company as to which the
Company either (i) has been notified in writing by any tax authority or (ii) has
knowledge based on personal contact with any agent of such authority.
(k) Compliance with Laws. The business and activities of the
Company have been and are being conducted in compliance with all provisions of
all applicable Federal, state, local and foreign statutes, ordinances, rules and
regulations. The Company is not in violation of or in default under (i) any
order, judgment or decree of any court, arbitration panel or other tribunal or
(ii) any administrative order, rulemaking, procedure, policy or other published
declaration of (x) any Federal, state, local or foreign governmental agency or
other authority or (y) any professional society, board or other similar
organization, except in the case of clauses (i) or (ii) above, such violations
or defaults that would not, singly or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The Company holds all governmental licenses,
permits, franchises and other governmental authorizations necessary to the
ownership of its properties or the conduct of its business as currently
conducted and as proposed to be conducted after the Closing, except for those
which failure to obtain would not have a Material Adverse Effect, and all such
licenses, permits, franchises and other governmental authorizations will remain
in full force and effect following the Closing.
(l) Absence of Certain Business Practices. Neither the Company
nor any officer, director, employee or agent thereof, nor any other person or
entity acting on behalf of the Company, acting alone or together, has (a)
received, directly or indirectly, any rebates, payments, commissions,
promotional allowances or any other economic benefits, regardless of their
nature or type, from any person or entity with whom the Company has done
business directly or indirectly, or (b) directly or indirectly, given or agreed
to give any gift or similar benefit to any person or entity who is or may be in
a position to help or hinder the business (or assist the Company in connection
with any actual or proposed transaction) which in the case of either clause (a)
or clause (b) above have not been fully and accurately described and reflected
in the Company's financial statements and books and records and which, (i) if
not given in the past, would reasonably be expected to have had a Material
Adverse Effect or (ii) if not continued in the future, would reasonably be
expected to have a Material Adverse Effect. The Company has not taken any action
which would cause it to be in violation of the Foreign Corrupt Practices Act of
1977, as amended, or any rules or regulations thereunder. To the Company's
knowledge, there is not now, and there has never been, any employment by the
Company of, or beneficial ownership in the Company by, any governmental or
political official in any country in the world.
(m) Elimination of Debt. Upon the application of the Purchase
Price in repayment of the Debt as provided in Section 2(c) hereof, the Debt
shall be completely and finally repaid and retired, and no Seller Party or other
person shall have any further claim in respect of the Debt.
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(n) No Broker. No Seller Party has committed any act or omission
which would give rise to any claim against any party hereto for a brokerage
commission, finder's fee, or other like payment in connection with the
transactions contemplated hereby.
4. Representations and Warranties of Purchasers.
(a) Unregistered Shares. The Purchasers understand that the
Transferred Shares are not registered under the Securities Act of 1933, as
amended (the "Securities Act") and are not qualified and/or registered under
applicable state securities laws pursuant to specific exemptions from
registration and/or qualification contained in the Securities Act and in
applicable state securities laws. The Purchasers understand that the foregoing
exemptions depend upon, among other things, the bona fide nature of their
investment intent.
(b) Legend. The Purchasers acknowledge that the Transferred
Shares will bear a legend which prohibits an offer to transfer or a transfer of
all or any portion of the Transferred Shares unless the Transferred Shares or
portion thereof are registered under the Securities Act or unless an exemption
from registration is available with respect to such resale or disposition.
(c) No Broker. Purchasers have not committed any act or omission
which would give rise to any valid claim against any of the parties hereto for a
brokerage commission, finder's fee, or other like payment in connection with the
transactions contemplated hereby.
5. Purchaser Rights.
(a) Tag-Along Rights. If at any time following the Closing any of
the Seller, the Trustee or any Grantor (a "Selling Shareholder") proposes to
sell, transfer or dispose of fifteen million (15,000,000) or more shares of such
Common Stock (as adjusted to reflect any stock split, combination,
reclassification or change of the Common Stock after the Closing) held or
controlled directly or indirectly by such person in a single bona fide arm's
length transaction (or a series of related transactions in any twenty-four (24)
month period) to one or more third parties, the following rights shall apply:
Not later than thirty (30) days prior to proposed closing of such Transaction,
such Selling Shareholder shall deliver to each Purchaser a notice of intention
to sell (a "Tag-Along Notice"), setting forth the number of shares of Common
Stock proposed to be sold (the "Subject Shares") and all terms and conditions of
such proposed sale. The Selling Shareholder shall offer to include in such
proposed sale, on the same terms and conditions (provided that no Purchaser
shall be required to make any representation or warranty in respect of such sale
other than as to its ownership thereof and authority to enter into such
transaction), a number of shares of Common Stock of each Purchaser equal to such
Purchaser's pro rata percentage of the issued and outstanding shares of Common
Stock as of the date of the Tag-Along Notice multiplied by the number of Subject
Shares. Each Purchaser shall notify the Selling Shareholder of its election to
participate in such transaction and the number of shares of Common Stock to be
included therein not later than 20 days following receipt of the Tag-Along
Notice. The number of Subject Shares shall be reduced by the number of shares of
Common Stock of each Purchaser to be included in such transaction. Each party
hereto shall use its commercially reasonable efforts to cause the prompt
consummation of the transactions contemplated by this section.
(b) Registration of Transferred Shares. If at any time following
the Closing and prior to the fifth anniversary of the date hereof the Company
proposes to register any of its Common Stock under the Securities Act (other
than shares of Common Stock registered as of the date hereof, and other than
pursuant to a registration statement on Form X-0, X-0 or another form not
available for registering the Common Stock for sale to the public) the Company
shall provide not less than thirty (30) days notice thereof to each Purchaser
and shall at its expense and upon the request of each Purchaser,
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include in the Common Stock to be so registered such number of the Transferred
Shares held by such Purchaser as specified by such Purchaser.
(c) Certain Pre-Emptive Rights. If the Company proposes to issue
any Common Stock or other securities containing options or rights to acquire any
Common Stock or any securities convertible or exchangeable for Common Stock
("New Securities") after the date hereof to any person, then the Company will
offer to sell to each Purchaser a number of shares of Common Stock or such New
Securities such that the ratio of such Purchaser's shares of Common Stock to all
shares of Common Stock outstanding on the date hereof shall (upon exercise by
Purchaser of the pre-emptive right set forth herein) be equal to the ratio of
such Purchaser's shares of Common Stock to all shares of Common Stock
outstanding immediately following such issuance (after giving effect to any
exercise, conversion or exchange of all such New Securities). The Company shall
give each Purchaser not less that thirty (30) days prior written notice of any
proposed issuance, which notice shall disclose in reasonable detail the proposed
terms and conditions of such issuance (the "Issuance Notice"). The Purchasers
will be entitled to purchase such New Securities at the same price, on the same
terms, and at the same time as the New Securities are issued to the proposed
purchaser(s) thereof by delivery of written notice to the Company of such
election within twenty (20) days after delivery of the Issuance Notice (the
"Election Notice"). If any Purchaser has elected to purchase any New Securities,
the sale of such New Securities shall be consummated as soon as practical (but
in any event within fifteen (15) days) after the delivery of the Election
Notice. It is agreed that the term "New Securities" shall not include any
issuance of securities or options to purchase securities described in this
Section 5(c) to employees, officers, directors or consultants of the Company
pursuant to any employee compensation plan or arrangement approved by the Board
of Directors of the Company.
(d) Appointment of Director. The Purchasers shall have the right,
but not the obligation, to designate one (1) individual (the "Purchaser
Designee") to serve as a member of the Board of Directors of the Company. At all
times following the Closing, Purchasers may designate a Purchaser Designee upon
ten (10) days' notice given to each Seller Party by Purchasers. Promptly upon
receipt of such notice, each Seller Party shall take such actions as may be
necessary or appropriate to cause an annual or special meeting of shareholders
to be held for the purpose of electing the Board of Directors of the Company. At
each annual or special shareholder's meeting called for such purpose and
whenever stockholders of the Company act by written consent in respect of the
election of directors, each Seller Party agrees to vote or otherwise give such
party's consent in respect of all shares of capital stock of the Company owned
at such time by such party or as to which such party is entitled to vote, and
the Company shall take all necessary and desirable actions within its control,
in order to cause the election to the board of the Purchaser Designee, which
Purchaser Designee shall hold office until his successor shall have been duly
elected and qualified. The Purchasers shall be entitled to cause the removal of
such Purchaser Designee at any time in their sole discretion. Upon the
resignation or removal of the Purchaser Designee for any reason, the Purchasers
shall be entitled, but not obligated, to designate a successor Purchaser
Designee pursuant hereto. The right of the Purchasers to designate the Purchaser
Designee shall terminate if at any time the aggregate number of shares of Common
Stock held by the Purchasers is less than one million seven hundred thousand
(1,700,000), as adjusted to reflect any stock split, combination,
reclassification or change of the Common Stock after the Closing.
(e) Further Agreements. If at any time following the Closing
while Purchasers hold any shares of Common Stock any party hereto enters into
any agreement or understanding (whether written or oral) granting any person any
of the rights granted to Purchasers hereunder but which are more favorable to
such person than to Purchasers, each Seller Party entering into such agreement
or understanding shall notify the Purchasers in advance thereof and this
Agreement shall be deemed automatically and without further action to be amended
or modified to provide Purchasers with rights equal in all respects to such more
favorable rights.
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6. Indemnification.
(a) Seller Parties' Agreement to Indemnify. Each Seller Party
jointly and severally agrees to indemnify each Purchaser against, and to
protect, save and keep harmless each Purchaser from, and to assume liability
for, payment of all liabilities that may be imposed on or incurred by such
Purchaser as a consequence of or in connection with (a) any breach by any Seller
Party of a representation or warranty contained in this Agreement; or (b) any
failure by any Seller Party to perform any agreement or covenant contained
herein. The foregoing indemnity shall include reasonable attorneys' fees
incurred in connection with the enforcement of this indemnity.
(b) Purchasers' Agreement to Indemnify. Each Purchaser, jointly
and not severally, agrees to indemnify each Seller Party against, and to
protect, save and keep harmless each Seller Party from, and to assume liability
for, payment of all liabilities that may be imposed on or incurred by any Seller
Party as a consequence of or in connection with (a) any breach by a Purchaser of
a representation or warranty contained in this Agreement; or (b) any failure by
a Purchaser to perform any agreement or covenant contained herein.
(c) Notice of Claims and Potential Claims. The parties shall, in
a timely manner, provide each other with notice of all third party actions,
suits, proceedings, claims, demands or assessments subject to the
indemnification provisions of this Section 6 (collectively, "Third Party
Claims"), brought at any time following the date hereof, and shall otherwise
make available all relevant information material to the defense of any such
Third Party Claims. The indemnifying party shall, have the right to participate
in and, to the extent it shall wish, to assume and undertake the defense of any
such Third Party Claim at its sole expense. No claim shall be settled or
compromised without the consent of the indemnifying party unless the
indemnifying party shall have failed, after the lapse of a reasonable time, but
in no event more than 30 days, after notice to it of such third Party Claim, to
participate in the defense of the same. The indemnified party shall have the
right to participate, with separate counsel (which counsel shall act in an
advisory capacity only), in any such defense. After notice by the indemnifying
party to the indemnified party of the indemnifying party's election to assume
the defense of any such Third Party Claim, the indemnifying party shall not be
liable to the indemnified party for any expenses of the indemnified party's
counsel that are subsequently incurred in connection with such defense;
provided, however, that the expense of such indemnified party's separate counsel
shall be paid by the indemnifying party if (i) the indemnifying party requests
such separate counsel to participate, or (ii) in the reasonable opinion of such
separate counsel, a significant conflict of interest exists between the
indemnifying, party and the indemnified party that would make such separate
representation clearly advisable. A party's failure to give timely notice or to
provide copies of documents or to furnish relevant data in connection with any
Third Party Claim shall not constitute a defense (in part or in whole) to any
claim for indemnification or such party, except and only to the extent that such
failure shall result in any prejudices to the indemnifying party.
7. General Provisions.
(a) Survival of Representation and Warranties. All
representations and warranties made by each Seller Party and each Purchaser
under this Agreement shall survive for a period of two years following the
Closing, whereupon they shall expire.
(b) Sections and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
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(c) No Waiver of Rights. No failure or delay on the part of any
party in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, and no single or partial exercise of any such power, right
or privilege shall preclude other or further exercise thereof or of any other
right, power or privilege. All rights and remedies existing under this Agreement
are cumulative with, and not exclusive of, any rights or remedies otherwise
available. No waiver shall be binding unless in writing and signed by the party
to be charged or a qualified officer thereof.
(d) Notice. All notices hereunder shall be in writing and shall
be either personally delivered, transmitted by postage prepaid registered or
certified mail, return receipt requested, transmitted by telecopier, or
transmitted by internationally recognized courier service to the parties hereto
at their respective addresses. Except as otherwise specified herein, all notices
and other communications shall be deemed to have been duly given on receipt. For
purposes hereof, the addresses and telecopier numbers of the parties hereto
(until notice of a change thereof is given as provided herein) shall be as
follows:
If to any Purchaser:
Firebird Global Master Fund, Ltd. or
Firebird Republics Fund, Ltd.
c/o Firebird Management LLC
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxx
With a copy to:
Xxxxxxxxxxx X. Xxxxx, Esq.
Coudert Brothers LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
If to any Seller Party, to such Party:
c/o EMPS Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Telecopier: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
000 Xxxxx 0000 Xxxxx
Xxxx, XX 00000
Telecopier: (000) 000-0000
(e) Governing Law. This Agreement and the rights and obligations
of the parties hereto shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of law provisions
thereof. The parties hereby irrevocably consent to, and waive any objection to
the exercise of, personal jurisdiction by the state and federal courts located
in New York, New York with respect to any action or proceeding arising out of
this Agreement.
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(f) Assignment; Successors. This Agreement shall inure to the
benefit of and be binding upon the heirs, successors and assigns of all parties;
provided, however, that each Seller Party hereby covenants, that (i) in the
event of the appointment of any successor Trustee to the Seller, such successor
trustee shall be become a party to and be bound by this Agreement as though an
original signatory hereto; (ii) in the event of the dissolution or termination
of the Seller for any reason each Seller Party shall cause each owner of shares
of Common Stock held by the Seller as of the date hereof to comply with the
terms hereof as though the Seller had not been dissolved; and (iii) any
transferee of shares of Common Stock from any Seller Party shall agree to be
bound by the provisions of this Agreement as though an original signatory
hereto.
(g) Further Assurances. The parties hereto agree that, from time
to time hereafter, and upon request, each of them will execute, acknowledge and
deliver such other documents and instruments as may be required to carry out
more effectively the terms and conditions of this Agreement.
(h) Entire Agreement; Modifications; Severability. This
Agreement, together with the other agreements referred to herein, constitutes
the entire agreement between the parties pertaining to the subject matter hereof
and supersedes all prior and contemporaneous agreements, representations and
understandings, written or oral, of the parties. This Agreement may not be
modified or amended except by a writing signed by each of the parties hereto
(and by a qualified officer if such party is a legal entity). The invalidity,
illegality or unenforceability for any reason of any one or more provisions of
this Agreement shall not affect the validity, legality or enforceability of the
remainder of this Agreement.
(i) Counterpart Originals. This Agreement maybe (i) executed
simultaneously in two or more counterparts each of which shall be deemed an
original but all of which together shall constitute one and the same instrument,
and (ii) executed by facsimile.
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IN WITNESS WHEREOF, this Agreement has been executed by each of the
individual parties hereto on the date first above written.
SELLER: GRANTORS:
/s/ Xxxxx X. Xxxxxxxx, Xx.
-------------------------------
Xxxxx X. Xxxxxxxx, Xx., Trustee
EMPS CORPORATION: /s/
------------------------------
Petroleum Group Services Ltd.
/s/ Xxxxx X. Xxxxxx Authorized Signature
-------------------------------
By: Xxxxx X. Xxxxxx, President
PURCHASERS: /s/ Xxxxxxx Xxxxxx
------------------------------
Xxxx International Ltd.
/s/ Xxxxx Xxxxxx Authorized Signature
-------------------------------
Firebird Global Master Fund, Ltd.
Authorized Signature
/s/ Lok Xxxx Xxxx
------------------------------
/s/ Xxxxxx Xxxxxxx Techgrand Company Ltd.
------------------------------- Authorized Signature
Firebird Republics Fund, Ltd.
Authorized Signature /s/ Xxxx Xxxxxxx
------------------------------
Xxxx Xxxxxxx
Authorized Signature
/s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Authorized Signature
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EXHIBIT A
SHARE CERTIFICATES
------------------
Name and Address Number of Shares
---------------- ----------------
Bear Xxxxxxx FBO Firebird Global Master Fund, Ltd. Seven Hundred Thousand
c/o Citco Fund Services (Cayman Islands) Limited (700,000)
Corporate Center
P.O. Box 31106 SMB
West Bay Road
Grand Cayman, Cayman Islands
Firebird Republics Fund, Ltd. One Million (1,000,000)
c/o Trident Trust Company (Cayman) Limited
One Capital Place
P.O. Box 847
Xxxxxx Town, Grand Cayman,
Cayman Islands
EXHIBIT B
SELLER'S BANK ACCOUNT
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Bank: Xxxxx Fargo Bank
Routing ABA#: 000000000
S.W.I.F.T: XXXXXX0X
Credit: Xxxxx X. Xxxxxxxx, Attorney-at-Law, IOLTA
Account Number: 1652695584
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