EXIHIBIT 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into this 26th day of January, 2004, by and among Xxxxx X. Xxxxxxxx, Xx., an
individual (the "Seller"), on the one hand, and the Firebird Avrora Fund, Ltd.,
Firebird Republics Fund, Ltd., and Firebird Global Master Fund, Ltd. (the
"Purchasers"), on the other hand.
RECITALS:
WHEREAS, the Seller, as trustee of certain brokerage accounts
established through the Salt Lake City office of Xxxxxx Xxxxxxx, holds title to
one million (1,000,000) shares of Common Stock of EMPS Corporation (OTCBB
Symbol: EPSC) ("the Common Stock") currently held in Seller's name at Xxxxxx
Xxxxxxx; and
WHEREAS, Seller desires to sell to Purchasers, and the Purchasers
desire to purchase from Seller, an aggregate of one million (1,000,000) shares
of the Common Stock (the "Transferred Shares") 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.
b. Closing. The closing of the sale and purchase of the Transferred
Shares described in Section 1(a) (the "Closing") shall take place at 10:00 am
EST on January 26, 2004 at the offices of Coudert Brothers LLP, 1114 Avenue of
the Americas, New York, New York, or at such other time and place 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
Seller the sum of Two Million Dollars ($2,000,000), (the "Purchase Price"). The
Purchase Price shall be paid at the Closing by wire transfer of immediately
available funds to the Seller's trust account as set forth in Exhibit A hereto.
b. Delivery. At the Closing, the Seller shall cause Xxxxxx Xxxxxxx
to electronically transfer the Transferred Shares, through the Depository Trust
Company (the "DTC") to the brokerage accounts designated by the Purchasers as
described in Exhibit B hereto.
3. Representations and Warranties of Seller.
Seller hereby represents and warrants to the Purchasers as follows:
a. Ownership of Stock. Seller is the record owner of, and has good
and valid title to, the Transferred Shares free and clear of any liens, claims,
equities, encumbrances, security interests and restrictions of any kind and has
full and complete legal right, power and authority to execute and deliver this
Agreement and to duly perform its obligations hereunder.
b. Validity. This Agreement constitutes the legal, valid and binding
obligation of the Seller.
c. Consents and Approvals. The execution and delivery of this
Agreement, the consummation of the transaction contemplated hereby and the
performance by Seller of the terms and conditions hereof do 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 law or regulation applicable to Seller or to which Seller is bound or
subject.
d. SEC Rule 144. The Transferred Shares are being sold to the
Purchasers pursuant to Rule 144(k) of the Securities Act of 1933, as amended
(the "Securities Act"). On and as of the date hereof, Seller has beneficially
owned the Transferred Shares for a period of not less than two years, and has at
all times during such period been subject to the full risk of economic loss of
such investment. Seller is not, and during the three month period preceding the
date hereof has not been, an "affiliate" (as such term is defined in Rule
144(a)(1) of the Securities Act) of EMPS Corporation. None of the Transferred
Shares bear any restrictive legend whatsoever.
e. No Broker. The Seller has not 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
transaction contemplated hereby.
4. Representations and Warranties of Purchasers.
Purchasers hereby represent and warrant to the Seller as follows:
a. 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.
b. Validity. This Agreement constitutes the legal, valid and binding
obligation of the Purchasers.
5. Termination.
If the Closing has not occurred on or before February 28, 2004, this
Agreement may be terminated at any time by any Purchaser or the Seller,
respectively, by notice to the other parties hereto, in which case this
Agreement shall be null and void, except for the provisions of Sections 3(e),
4(a), and 6(d), which shall remain in full force and effect.
6. General Provisions.
a. 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.
b. 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.
c. 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 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 Seller:
Xxxxx X. Xxxxxxxx, Xx., Esq.
000 Xxxxx 0000 Xxxxx
Xxxx, XX 00000
Telecopier: (000) 000-0000
d. 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.
e. Assignment; Successors. This Agreement shall inure to the benefit
of and be binding upon the heirs, successors and assigns of all parties.
f. 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.
g. 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.
h. Counterpart Originals. This Agreement may be (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.
IN WITNESS WHEREOF, this Agreement has been executed by each of the
individual parties hereto on the date first above written.
SELLER:
/s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------
Xxxxx X. Xxxxxxxx, Xx., Trustee
PURCHASERS:
/s/ Xxxxxx Xxxxxxx
------------------
Firebird Avrora Fund, Ltd.
Authorized Signature
/s/ Xxxxxx Xxxxxxx
------------------
Firebird Republics Fund, Ltd.
Authorized Signature
/s/ Xxxxx Xxxxxx
----------------
Firebird Global Master Fund, Ltd.
Authorized Signature
/s/ Xxxxxx Xxxxxxx
------------------
Authorized Signature
EXHIBIT A
SELLER'S BANK TRUST ACCOUNT
Bank: Xxxxx Fargo Bank
Routing ABA#: 000000000
S.W.I.F.T: XXXXXX0X
Credit: Xxxxx X. Xxxxxxxx, IOLTA
Account Number: 1652695584
EXHIBIT B
INSTRUCTIONS FOR SHARE TRANSFER THROUGH THE DTC
Broker's Name and DTC Number Beneficiary and Account Number Number of Shares
---------------------------- ------------------------------ ----------------
Hansabank DTC 902 Firebird Avrora Fund, Ltd. 425,000
Agent ID# 00902
Institutional ID #00902
Ref: G54115 Hansabank a/c 99443
Broker's Name and DTC Number Beneficiary and Account Number Number of Shares
---------------------------- ------------------------------ ----------------
Bear Xxxxxxx DTC 352 Firebird Global Master Fund, Ltd. 300,000
Broker's Name and DTC Number Beneficiary and Account Number Number of Shares
---------------------------- ------------------------------ ----------------
Xxxxx Xxxxxx XXX 0000 Xxxxxxxx Xxxxxxxxx Fund, Ltd. 275,000
Ref: YQ1D