SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
EMPS Research Corporation
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(Name of Issuer)
Common Stock $.001 par value per share
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(Title of Class of Securities)
268710100
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(CUSIP Number)
Louis S. Naegle, Director Ronald Poulton, Esq
Brisa Equities Corporation Poulton & Yordan
1020 East 900 South 324 South 400 West, Suite 250
Bountiful, Utah 84010 Salt Lake City, Utah 84101
(801) 809-1529 (801) 355-1341
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(Name, Address and Telephone Number of Person Authorized to Receive
Notes and Communications)
January 28, 2005
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. [ ]
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
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CUSIP No. 268710100 Page 2 of 5 Pages
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1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Brisa Equities Corporation
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS (See Instructions)
OO
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
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NUMBER OF 7. SOLE VOTING POWER 21,000,000
SHARES -------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER 0
OWNED BY -------------------------------------------------------------
EACH 9. SOLE DISPOSITIVE POWER 21,000,000
REPORTING -------------------------------------------------------------
PERSON WITH 10. SHARED DISPOSITIVE POWER 0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,000,000
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12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
54.8%
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14. TYPE OF REPORTING PERSON (See Instructions)
CO
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SCHEDULE 13D
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CUSIP No. 268710100 Page 3 of 5 Pages
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1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Louis S. Naegle
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS (See Instructions)
OO
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7. SOLE VOTING POWER 21,000,000
SHARES -------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER 0
OWNED BY -------------------------------------------------------------
EACH 9. SOLE DISPOSITIVE POWER 21,000,000
REPORTING -------------------------------------------------------------
PERSON WITH 10. SHARED DISPOSITIVE POWER 0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,000,000
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12. CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
54.8%
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14. TYPE OF REPORTING PERSON (See Instructions)
IN
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Page 4 of 5 pages
ITEM 1. SECURITY AND ISSUER
This statement relates to the Common Stock, par value $.001, ("Common
Stock") of EMPS Research Corporation (the "Issuer") which has its principal
executive offices at 875 Donner Way, Unit 705, Salt Lake City, Utah 84108.
ITEM 2. IDENTITY AND BACKGROUND
This statement is being filed by Brisa Equities Corporation, ("Brisa")
and Mr. Louis Naegle, who, because of his position as sole director of Brisa may
be deemed to be the beneficial owner of the shares owned by Brisa. The principal
business address of both Brisa and Mr. Naegle is 1020 East 900 South, Bountiful,
Utah 84010.
During the last five years neither Brisa nor Mr. Naegle has (a) been
convicted in a criminal proceeding, (excluding traffic violations or similar
misdemeanors) or (b) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding and violations with respect to such laws.
Brisa is a British Virgin Island company set up for investment
purposes. Mr. Naelge is a citizen of the United State of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS
On January 28, 2005, the Issuer, Condesa Pacific, S.A., and the
shareholders of Condesa Pacific completed the closing of a Plan and Agreement of
Reorganization (the "Agreement"), pursuant to which, the Issuer issued
35,000,000 shares of common stock to the shareholders of Condesa Pacific in
exchange for all of the outstanding common stock of Condesa. In connection with
the transaction, Brisa was issued 21,000,000 shares of the Issuer in exchange
for 60% of the outstanding capital stock of Condesa.
ITEM 4. PURPOSE OF TRANSACTION
As disclosed above, Brisa acquired 21,000,000 common shares of the
Issuer pursuant to the Agreement. Upon consummation of the Agreement, which
occurred on January 28, 2005, a change in control of the Issuer occurred as more
fully disclosed in the Current Report filed by the Issuer on Form 8-K on
February 2, 2005.
Brisa acquired these shares for investment purposes. It has no plans or
proposals which would have any of the effects enumerated in the instructions to
Item 4 or any similar to those enumerated.
Page 5 of 5 pages
Brisa reserves the right to sell securities of the Issuer and to
purchase securities of the Issuer.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Brisa beneficially owns 21,000,000 common shares or approximately 54.8%
of the issued and outstanding shares of the Issuer. As the sole Director of
Brisa, Mr. Naegle has voting and dispositive power over these shares.
During the past 60 days, Brisa has not made any purchases of Common
Stock of the Issuer.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
None.
ITEM 7. EXHIBITS
The Plan and Agreement of Reorganization between the Issuer, Condesa
Pacific and the Condesa Pacific shareholders is filed as Exhibit 1 to this
Schedule 13D.
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Brisa Equities Corporation
Date: February 7, 2005 /s/ Louis Naegle
--------------------------------
Louis Naegle, Director
Exhibit 1
PLAN AND AGREEMENT OF REORGANIZATION
AMONG
EMPS RESEARCH CORPORATOIN
AND
CONDESA PACIFIC S.A.
AND
THE SHAREHOLDERS OF
CONDESA PACIFIC S.A.
DATED DECEMBER 3, 2004
TABLE OF CONTENTS
Plan and Agreement of Reorganization........................................3
Plan of Reorganization......................................................3
Agreement................................................................3
Section 1 - Transfer of Shares........................................3
Section 2 - Issuance of Exchange Stock to CONDESA Shareholders........3
Section 3 - Closing...................................................4
Section 4 - Representations and Warranties by CONDESA and Certain
Shareholders..............................................6
Section 5 - Representations and Warranties by EMPS RESEARCH..........10
Section 6 - Access and Information...................................14
Section 7 - Covenants of CONDESA and Certain Shareholders............14
Section 8 - Covenants of EMPS RESEARCH...............................16
Section 9 - Additional Covenants of the Parties......................17
Section 10 - Survival of Representations, Warranties and Covenants...18
Section 11 - Conditions Precedent to Obligations of Parties..........18
Section 12 - Termination, Amendment, Waiver..........................21
Section 13 - Miscellaneous...........................................21
Exhibit List...............................................................27
Schedule List..............................................................27
2
PLAN AND AGREEMENT OF REORGANIZATION
This Plan and Agreement of Reorganization ("Agreement") is entered into
as of this 3rd day of December 2004 by and between EMPS RESEARCH CORPORATION, a
Utah corporation ("EMPS RESEARCH"), and CONDESA PACIFIC S. A.., a British Virgin
Islands international business company ("CONDESA"), and those persons listed in
Exhibit A hereto, being all of the shareholders of CONDESA as of the date this
Agreement is executed.
PLAN OF REORGANIZATION
The transaction contemplated by this Agreement is intended to be an
exchange of stock reorganization. EMPS RESEARCH will acquire 100% of CONDESA's
issued and outstanding common stock, (no par value) in exchange for 35,000,000
shares of EMPS RESEARCH's common stock, $.001 par value (the "Exchange Stock").
Upon the consummation of the exchange transaction and the issuance and transfer
of the Exchange Stock as set forth in Section 2 hereinbelow, CONDESA
Shareholders would hold ninety percent (90%) of the then-outstanding common
stock of EMPS RESEARCH representing a controlling interest in EMPS RESEARCH. The
Exchange Transaction will result in CONDESA becoming a wholly-owned subsidiary
of EMPS RESEARCH. Thereafter, EMPS RESEARCH would expect to change its name to
Bekem Metals, Inc., or some other corporate name similar thereto.
AGREEMENT
Section 1
Transfer of Shares
1.1 All shareholders of CONDESA (the "Shareholders" or the "CONDESA
Shareholders"), as of the date of Closing as such term is defined in
Section 3 herein (the "Closing" or the "Closing Date"), shall transfer,
assign, convey and deliver to EMPS RESEARCH on the Closing Date,
certificates representing one hundred percent (100%) of the CONDESA
Stock. The transfer of the CONDESA Stock shall be made free and clear
of all liens, mortgages, pledges, encumbrances or charges, whether
disclosed or undisclosed, except as the CONDESA Shareholders and EMPS
RESEARCH shall have otherwise agreed in writing.
Section 2
Issuance of Exchange Stock to CONDESA Shareholders
2.1 As consideration for the transfer, assignment, conveyance and delivery
of the CONDESA Stock hereunder, EMPS RESEARCH shall, at the Closing
issue to the CONDESA Shareholders, pro rata in accordance with each
Shareholder's percentage ownership of CONDESA immediately prior to the
Closing, certificates representing 35,000,000 shares of EMPS RESEARCH
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Common Stock. The parties intend that the Exchange Shares being issued
will be used to acquire all outstanding CONDESA Shares. To the extent
that less than 100% of the CONDESA Stock is acquired, the number of
shares issuable to those CONDESA Shareholders who have elected to
participate in the exchange described in this Agreement (the
"Exchange") shall decrease proportionately.
2.2 The issuance of the Exchange Stock shall be made free and clear of all
liens, mortgages, pledges, encumbrances or charges, whether disclosed
or undisclosed, except as the CONDESA Shareholders and EMPS RESEARCH
shall have otherwise agreed in writing. As provided herein, and
immediately prior to the Closing, EMPS RESEARCH shall have issued and
outstanding: (i) not more than 3,888,888 shares of Common Stock; and
(ii) shall have no preferred stock or other securities issued and
outstanding.
2.3 None of the Exchange Stock issued to the CONDESA Shareholders, nor any
of the CONDESA Stock transferred to EMPS RESEARCH hereunder shall, at
the time of Closing, be registered under federal securities laws but,
rather, shall be issued pursuant to an exemption therefrom and be
considered "restricted stock" within the meaning of Rule 144
promulgated under the Securities Act of 1933, as amended (the "Act").
All of such shares shall bear a legend worded substantially as follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") and
are `restricted securities' as that term is defined in Rule
144 under the Act. The shares may not be offered for sale,
sold or otherwise transferred except pursuant to an exemption
from registration under the Act, the availability of which is
to be established to the satisfaction of the Company."
The respective transfer agents of EMPS RESEARCH and CONDESA shall
annotate their records to reflect the restrictions on transfer embodied
in the legend set forth above. There shall be no requirement that EMPS
RESEARCH register the Exchange Stock under the Act, nor shall CONDESA
or the Shareholders be required to register any CONDESA Shares under
the Act.
Section 3
Closing
3.1 Closing of Transaction. Subject to the fulfillment or waiver of the
conditions precedent set forth in Section 11 hereof, the Closing shall take
place on the Closing Date at the offices of, Poulton & Yordan, Attorneys at Law,
324 South 400 West, Salt Lake City, Utah 84101, at 10:00 A.M., local time, or at
such other time on the Closing Date as CONDESA and EMPS RESEARCH may mutually
agree in writing.
3.2 Closing Date. The Closing Date of the Exchange shall take place on a date
chosen by mutual agreement of CONDESA and EMPS RESEARCH within forty-five (45)
days from the date of this Agreement, or such later date upon which CONDESA and
EMPS RESEARCH may mutually agree in writing, or as extended pursuant to
subsection 12.1(b) hereinbelow.
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3.3 Deliveries at Closing.
(a) CONDESA shall deliver or cause to be delivered to EMPS RESEARCH at
Closing:
(1) certificates representing all shares, or an amount of
shares acceptable to EMPS RESEARCH, of the CONDESA
Stock as described in Section 1, each endorsed in
blank by the registered owner;
(2) an agreement from each Shareholder surrendering his
or her shares agreeing to a restriction on the
transfer of the Exchange Stock as described in
Section 2 hereof;
(3) a copy of a consent of CONDESA's board of directors
authorizing CONDESA to take the necessary steps
toward Closing the transaction described by this
Agreement in the form set forth in Exhibit B;
(4) Certificates of Good Standing for CONDESA and its
Subsidairy issued not more than thirty (30) days
prior to Closing by the regulatory authorities of the
British Virgin Islands and Republic of Kazakhstan,
respectively;
(5) an opinion of Mikhail Ioffe Esq., special counsel to
CONDESA, dated the Closing Date, in a form deemed
acceptable by EMPS RESEARCH and its counsel;
(6) Articles of Incorporation and Bylaws of CONDESA and
its Subsidiary certified as of the Closing Date by
the President and Secretary of CONDESA;
(7) such other documents, instruments or certificates as
shall be reasonably requested by EMPS RESEARCH or its
counsel.
(b) EMPS RESEARCH shall deliver or cause to be delivered to CONDESA at
Closing:
(1) a copy of a consent of EMPS RESEARCH's board of
directors authorizing EMPS RESEARCH to take the
necessary steps toward Closing the transaction
described by this Agreement in the form set forth in
Exhibit C;
(2) a copy of a Certificate of Good Standing for EMPS
RESEARCH issued not more than ten (10) days prior to
Closing by the Secretary of State of Utah;
(3) all of EMPS RESEARCH's corporate records;
(4) stock certificate(s) or a computer listing from EMPS
RESEARCH's transfer agent representing the Exchange
Stock to be newly issued by EMPS RESEARCH under this
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Agreement, which certificates shall be in the names
of the appropriate CONDESA Shareholders, each in the
appropriate denomination as described in Section 2;
(5) an opinion of Poulton & Yordan, Attorneys at Law,
counsel to EMPS RESEARCH, dated the Closing Date, in
a form deemed acceptable by CONDESA and its counsel;
(7) Articles of Incorporation and Bylaws of EMPS RESEARCH
certified as of the Closing Date by the President and
Secretary of EMPS RESEARCH;
(8) such other documents, instruments or certificates as
shall be reasonably requested by CONDESA or its
counsel.
3.4 Filings; Cooperation.
(a) Prior to the Closing, the parties shall proceed with due
diligence and in good faith to make such filings and take such
other actions as may be necessary to satisfy the conditions
precedent set forth in Section 11 below.
(b) On and after the Closing Date, EMPS RESEARCH, CONDESA and the
Shareholders set forth in Exhibit A shall, on request and
without further consideration, cooperate with one another by
furnishing or using their best efforts to cause others to
furnish any additional information and/or executing and
delivering or using their best efforts to cause others to
execute and deliver any additional documents and/or
instruments, and doing or using their best efforts to cause
others to do any and all such other things as may be
reasonably required by the parties or their counsel to
consummate or otherwise implement the transactions
contemplated by this Agreement.
Section 4
Representations and Warranties by CONDESA and Certain Shareholders
4.1 Subject to the schedule of exceptions, attached hereto and incorporated
herein by this reference, (which schedules shall be acceptable to EMPS
RESEARCH), CONDESA and those Shareholders listed on Exhibit A represent
and warrant to EMPS RESEARCH as follows:
(a) Organization and Good Standing of CONDESA. The Articles of
Incorporation of CONDESA AND KAZNICKEL LLP, its subsidiary,
and all Amendments thereto as presently in effect, and the
Bylaws of CONDESA AND KAZNICKEL, as presently in effect,
certified by the President and Secretary of CONDESA AND
KAZNICKEL, respectively, have been delivered to EMPS RESEARCH
and are complete and correct and since the date of such
delivery, there has been no amendment, modification or other
change thereto.
(b) Capitalization. CONDESA's authorized capital stock is 50,000
shares of $1.00 par value Common Stock (defined as "CONDESA
Common Stock"), of which 50,000 shares are issued and
6
outstanding prior to the Closing Date, and held of record by
approximately seven (7) persons, who are currently not
residents of the United States. All of such outstanding shares
are validly issued, fully paid and non-assessable. There are
no outstanding options and warrants for Condesa Common Stock.
All securities issued by CONDESA as of the date of this
Agreement have been issued in compliance with all applicable
securities laws. Except as set forth in Schedule 4.1(b), no
other equity securities or debt obligations of CONDESA are
authorized, issued or outstanding.
(c) Subsidiaries. Other than KAZNICKEL LLP, and as set forth in
Schedule 4.1 (c), CONDESA has no subsidiaries and no other
investments, directly or indirectly, or other financial
interest in any other corporation or business organization,
joint venture or partnership of any kind whatsoever.
(d) Financial Statements. CONDESA will deliver to EMPS RESEARCH,
prior to Closing, a copy of Condesa's unaudited financial
statements for the nine (9) months ended November 30, 2004,
which will be true and complete and will have been prepared in
conformity with generally accepted accounting principles and
within 90 days of the date of this Agreement, audited
financial statements for the fiscal year ended December 31,
2004 prepared in compliance with U.S. GAAP and GAAS. Other
than changes in the usual and ordinary conduct of the business
since November 30, 2004, there have been and, at the Closing
Date, there will be no material adverse changes in such
financial statements.
(e) Absence of Undisclosed Liabilities. Other than as set forth in
Schedule 4.1 (e), neither Condesa nor its subsidiaries has any
liabilities which are not adequately reflected or reserved
against in the CONDESA Financial Statements or otherwise
reflected in this Agreement and Condesa shall not have as of
the Closing Date, any liabilities (secured or unsecured and
whether accrued, absolute, direct, indirect or otherwise)
which were incurred after November 30, 2003, and would be
individually or in the aggregate, material to the results of
operations or financial condition of CONDESA as of the Closing
Date.
(f) Litigation. Except as disclosed in Schedule 4.1(f), there are
no outstanding orders, judgments, injunctions, awards or
decrees of any court, governmental or regulatory body or
arbitration tribunal against CONDESA or its subsidiary or its
properties. Except as disclosed in Schedule 4.1(f), there are
no actions, suits or proceedings pending, or, to the knowledge
of CONDESA, threatened against or affecting CONDESA or its
affiliated companies, any of its officers or directors
relating to their positions as such, or any of its properties,
at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, in
connection with the business, operations or affairs of CONDESA
or its affiliated company which might result in any material
adverse change in the operations or financial condition of
CONDESA, or which might prevent or materially impede the
consummation of the transactions under this Agreement.
7
(g) Compliance with Laws. To the best of its knowledge, the
operations and affairs of CONDESA and its affiliated companies
do not violate any law, ordinance, rule or regulation
currently in effect, or any order, writ, injunction or decree
of any court or governmental agency, the violation of which
would substantially and adversely affect the business,
financial conditions or operations of such affiliated company
or CONDESA .
(h) Absence of Certain Changes. Except as set forth in Schedule
4.1(h), or otherwise disclosed in writing to EMPS RESEARCH,
since November 30, 2003,
(i) CONDESA has not entered into any material
transaction;
(ii) there has been no change in the condition (financial
or otherwise), business, property, prospects, assets
or liabilities of CONDESA as shown on the CONDESA
Financial Statement, other than changes that both
individually and in the aggregate do not have a
consequence that is materially adverse to such
condition, business, property, prospects, assets or
liabilities;
(iii) there has been no damage to, destruction of or loss
of any of the properties or assets of CONDESA
(whether or not covered by insurance) materially and
adversely affecting the condition (financial or
otherwise), business, property, prospects, assets or
liabilities of CONDESA;
(iv) CONDESA has not declared, or paid any dividend or
made any distribution on its capital stock, redeemed,
purchased or otherwise acquired any of its capital
stock, granted any options to purchase shares of its
stock, or issued any shares of its capital stock
except in conjunction with the private placement
described in Schedule 4.1(h);
(v) there has been no material change, except in the
ordinary course of business, in the contingent
obligations of CONDESA by way of guaranty,
endorsement, indemnity, warranty or otherwise;
(vi) there have been no loans made by CONDESA to its
employees, officers or directors;
(vii) there has been no waiver or compromise by CONDESA of
a valuable right or of a material debt owed to it;
(viii) there has been no extraordinary increase in the
compensation of any of CONDESA's employees;
(ix) there has been no agreement or commitment by CONDESA
to do or perform any of the acts described in this
Section 4.1(h); and
(x) there has been no other event or condition of any
character, which might reasonably be expected either
to result in a material and adverse change in the
condition (financial or otherwise), business,
property, prospects, assets or liabilities of CONDESA
or to impair materially the ability of CONDESA to
conduct the business now being conducted.
(i) Employees. There are, except as disclosed in Schedule 4.1(i),
no collective bargaining, bonus, profit sharing, compensation,
or other plans, agreements or arrangements between CONDESA and
any of its directors, officers or employees and there is no
employment, consulting, severance or indemnification
8
arrangements, agreements or understandings between CONDESA on
the one hand, and any current or former directors, officers or
employees of CONDESA on the other hand.
(j) Assets. All of the assets reflected on the November 30, 2003,
CONDESA Financial Statements or acquired and held as of the
Closing Date, will be owned by CONDESA on the Closing Date.
Except as set forth in Schedule 4.1(j), CONDESA owns outright
and has good and marketable title, or holds valid and
enforceable leases, to all of such assets. None of CONDESA's
equipment used by CONDESA in connection with its business has
any material defects and all of them are in all material
respects in good operating condition and repair, and are
adequate for the uses to which they are being put; none of
CONDESA's equipment is in need of maintenance or repairs,
except for ordinary, routine maintenance and repair. CONDESA
represents that, except to the extent disclosed in Schedule
4.1(j) to this Agreement or reserved against on its balance
sheet as of November 30, 2003, it is not aware of any accounts
and contracts receivable existing that in its judgment would
be uncollectible.
(k) Tax Matters. Other than as set forth in Schedule 4.1 (k), all
federal, foreign, state and local tax returns, reports and
information statements required to be filed by or with respect
to the activities of CONDESA and its subsidiary have been
timely filed. Since November 30, 2003, CONDESA has not
incurred any liability with respect to any federal, foreign,
state or local taxes except in the ordinary and regular course
of business. Such returns, reports and information statements
are true and correct in all material respects insofar as they
relate to the activities of CONDESA. On the date of this
Agreement, neither CONDESA nor its subsidiary is delinquent in
the payment of any such tax or assessment, and no deficiencies
for any amount of such tax have been proposed or assessed.
(l) Operating Authorities. To the best knowledge of CONDESA,
CONDESA and its subsidiary have all material operating
authorities, governmental certificates and licenses, permits,
authorizations and approvals ("Permits") required to conduct
its business as presently conducted or proposed to be
conducted. Such Permits are set forth on Schedule 4.1(l).
Since CONDESA's inception, there has not been any notice or
adverse development regarding such Permits; such Permits are
in full force and effect; no material violations are or have
been recorded in respect of any permit; and no proceeding is
pending or threatened to revoke or limit any Permit.
(m) Continuation of Key Management. To the best knowledge of
CONDESA, all key management personnel of CONDESA intend to
continue their employment with CONDESA after the Closing.
(n) Books and Records. The books and records of CONDESA and its
subsidiary are complete and correct, are maintained in
accordance with good business practice and accurately present
and reflect, in all material respects, all of the transactions
therein described, and there have been no transactions
involving CONDESA or its subsidiary which properly should have
been set forth therein and which have not been accurately so
set forth.
9
(o) Authority to Execute Agreement. The Board of Directors of
CONDESA, pursuant to the power and authority legally vested in
it, has duly authorized the execution and delivery by CONDESA
of this Agreement, and has duly authorized each of the
transactions hereby contemplated. CONDESA has the power and
authority to execute and deliver this Agreement, to consummate
the transactions hereby contemplated and to take all other
actions required to be taken by it pursuant to the provisions
hereof. CONDESA has taken all actions required by law, its
Articles of Incorporation, as amended, or otherwise to
authorize the execution and delivery of this Agreement. This
Agreement is valid and binding upon CONDESA and those
Shareholders listed in Exhibit A hereto in accordance with its
terms. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby
will constitute a violation or breach of the Articles of
Incorporation, as amended, or the Bylaws, as amended, of
CONDESA, or any agreement, stipulation, order, writ,
injunction, decree, law, rule or regulation applicable to
CONDESA.
(p) Finder's Fees. CONDESA is not, and on the Closing Date will
not be liable or obligated to pay any finder's, agent's or
broker's fee arising out of or in connection with this
Agreement or the transactions contemplated by this Agreement.
4.2 Disclosure. At the date of this Agreement, CONDESA and those
Shareholders listed in Exhibit A have, and at the Closing Date they
will have, disclosed all events, conditions and facts materially
affecting the business and prospects of CONDESA. CONDESA and such
Shareholders have not now and will not have at the Closing Date,
withheld knowledge of any such events, conditions or facts which they
know, or have reasonable grounds to know, may materially affect
CONDESA's business and prospects. Neither this Agreement nor any
certificate, exhibit, schedule or other written document or statement,
furnished to EMPS RESEARCH by CONDESA and/or by such Shareholders in
connection with the transactions contemplated by this Agreement
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to be stated in
order to make the statements contained herein or therein not
misleading.
Section 5
Representations and Warranties by EMPS RESEARCH
5.1 Subject to the schedule of exceptions, attached hereto and incorporated
herein by this reference, (which schedules shall be acceptable to
CONDESA), EMPS RESEARCH represents and warrants to CONDESA and those
Shareholders listed in Exhibit A as follows:
(a) Organization and Good Standing. EMPS RESEARCH is currently a
corporation duly organized, validly existing and in good
standing under the laws of the State of Utah and has full
corporate power and authority to own or lease its properties
and to carry on its business as now being conducted and as
proposed to be conducted. EMPS RESEARCH is qualified to
conduct business as a foreign corporation in no other
jurisdiction, and the failure to so qualify in any other
10
jurisdiction does not materially, adversely affect the ability
of EMPS RESEARCH to carry on its business as most recently
conducted. The Articles of Incorporation of EMPS Research and
all amendments thereto as presently in effect, certified by
the Secretary of State of Utah, and the Bylaws of EMPS
RESEARCH as presently in effect, certified by the President
and Secretary of EMPS RESEARCH, have been delivered to CONDESA
and are complete and correct and since the date of such
delivery, there has been no amendment, modification or other
change thereto.
(b) Capitalization. EMPS RESEARCH's authorized capital stock
consists of 50,000,000 shares of $.001 par value Common stock
(defined above as "EMPS RESEARCH Common Stock"), of which not
more than 3,888,888 will be issued and outstanding, prior to
Closing Date and held of record by approximately 150
shareholders. Except as set forth in Schedule 5.1(b), no other
equity securities or debt obligations of EMPS RESEARCH are
authorized, issued or outstanding and as of the Closing, there
will be no other outstanding options, warrants, agreements,
contracts, calls, commitments or demands of any character,
preemptive or otherwise, other than this Agreement, relating
to any of the EMPS RESEARCH Common Stock, and there will be no
outstanding security of any kind convertible into EMPS
RESEARCH Common Stock. The shares of EMPS RESEARCH Common
Stock are free and clear of all liens, charges, claims,
pledges, restrictions and encumbrances whatsoever of any kind
or nature that would inhibit, prevent or otherwise interfere
with the transactions contemplated hereby. All of the
outstanding EMPS RESEARCH Common Stock are validly issued,
fully paid and nonassessable and there are no voting trust
agreements or other contracts, agreements or arrangements
restricting or affecting voting or dividend rights or
transferability with respect to the outstanding shares of EMPS
RESEARCH Common Stock.
(c) Issuance of Exchange Stock. All of the EMPS RESEARCH Common
Stock to be issued to or transferred to CONDESA Shareholders
pursuant to this Agreement, when issued, transferred and
delivered as provided herein, will be duly authorized, validly
issued, fully paid and nonassessable, and will be free and
clear of all liens, charges, claims, pledges, restrictions and
encumbrances whatsoever of any kind or nature, except those
restrictions imposed by State or Federal corporate and
securities regulations.
(d) Shareholder Approval. EMPS RESEARCH will not be required to
obtain any approval of the transaction set forth in this
Agreement by its shareholders under the laws of the State of
Utah.
(e) No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated hereby nor compliance by EMPS RESEARCH with any
of the provisions hereof will:
(1) violate or conflict with, or result in a breach of
any provisions of, or constitute a default ( or an
event which, with notice or lapse of time or both,
would constitute a default) under, any of the terms,
conditions or provisions of the Articles of
Incorporation or Bylaws of EMPS RESEARCH or any note,
bond, mortgage, indenture, deed of trust, license,
11
agreement or other instrument to which EMPS RESEARCH
is a party, or by which it or its properties or
assets may be bound or affected; or
(2) violate any order, writ, injunction or decree, or any
statute, rule, permit, or regulation applicable to
EMPS RESEARCH or any of its properties or assets.
(f) Subsidiaries. Except as set forth in Schedule 5.1 (f), EMPS
RESEARCH has no subsidiaries and no investments, directly or
indirectly, or other financial interest in any other
corporation or business organization, joint venture or
partnership of any kind whatsoever.
(g) Financial Statements. EMPS RESEARCH will deliver to CONDESA
prior to Closing, copies of all of EMPS RESEARCH's audited
financial statements for the period ended December 31, 2003
and unaudited financial statements through September 30, 2004,
all of which are true and complete and have been prepared in
accordance with generally accepted accounting principles.
(h) SEC Filings. EMPS RESEARCH will deliver to CONDESA prior to
Closing, copies of all of EMPS RESEARCH's recent filings made
with the Securities and Exchange Commission ("SEC" including
Forms 10-KSB and 10-QSB and any proxy material).
(i) Absence of Certain Changes. Since November 30, 2004 there has
been no material change in EMPS RESEARCH's financial
conditions, assets or liabilities, except as set forth in
Schedule 5.1(i).
(j) Absence of Undisclosed Liabilities. Except as disclosed in
EMPS RESEARCH's Financial Statements, EMPS RESEARCH did not
have, as of the Closing Date, any liabilities (secured or
unsecured and whether accrued, absolute, direct, indirect or
otherwise) which were incurred after September 30, 2004, and
would be individually or in the aggregate, material to the
results of operation or financial condition of EMPS RESEARCH.
(k) Litigation. There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, governmental or
regulatory body or arbitration tribunal against EMPS RESEARCH
or its properties. There are no actions, suits or proceedings
pending, or, to the knowledge of EMPS RESEARCH, threatened
against or relating to EMPS RESEARCH. EMPS RESEARCH is not,
and on the Closing Date will not be, in default under or with
respect to any judgment, order, writ, injunction or decree of
any court or of any federal, state, municipal or other
governmental authority, department, commission, board, agency
or other instrumentality; and EMPS RESEARCH has, and on the
Closing Date will have, complied in all material respects with
all laws, rules, regulations and orders applicable to it, if
any.
(l) Contracts. EMPS RESEARCH is not a party to any written or oral
commitment for capital expenditures except as contemplated by
this Agreement. EMPS RESEARCH is not a party to, nor is its
property bound by any written or oral, express or implied,
agreement, contract or other contractual obligation including,
without limitation, any real or personal property leases, any
12
employment agreements, any consulting agreements any personal
services agreements or any other agreements that require EMPS
RESEARCH to pay any money or deliver any assets or services.
EMPS RESEARCH has in all material respects performed all
obligations required to be performed by it to date and is not
in default in any material respect under any agreements or
other documents to which it was a party.
(m) Tax Matters. Except as set forth in Schedule 5.1(m), all
federal, foreign, state and local tax returns, reports and
information statements required to be filed by or with respect
to the activities of EMPS RESEARCH have been filed for all the
years and periods for which such returns and statements were
due, including extensions thereof. Since September 30, 2004
EMPS RESEARCH has not incurred any liability with respect to
any federal, foreign, state or local taxes except in the
ordinary and regular course of business. Such returns, reports
and information statements are true and correct in all
material respects insofar as they relate to the activities of
EMPS RESEARCH. On the date of this Agreement, EMPS RESEARCH is
not delinquent in the payment of any such tax or assessment,
and no deficiencies for any amount of such tax have been
proposed or assessed. Any tax sharing agreement among or
between EMPS RESEARCH and any affiliate thereof shall be
terminated as of the Closing Date.
(n) Authority to Execute Agreement. The Board of Directors of EMPS
RESEARCH, pursuant to the power and authority legally vested
in it, has duly authorized the execution and delivery by EMPS
RESEARCH of this Agreement and the Exchange Stock, and has
duly authorized each of the transactions hereby contemplated.
EMPS RESEARCH has the power and authority to execute and
deliver this Agreement, to consummate the transactions hereby
contemplated and to take all other actions required to be
taken by it pursuant to the provisions hereof. EMPS RESEARCH
has taken all the actions required by law, its Certificate of
Incorporation, as amended, its Bylaws, as amended, applicable
state law or otherwise to authorize the execution and delivery
of the Exchange Stock pursuant to the provisions hereof. This
Agreement is valid and binding upon EMPS RESEARCH in
accordance with its terms.
(o) Finder's Fees. EMPS RESEARCH is not, and on the Closing Date,
will not be liable or obligated to pay any finder's, agent's
or broker's fee arising out of or in connection with this
Agreement or the transactions contemplated by this Agreement.
(p) Books and Records. The books and records of EMPS RESEARCH are
complete and correct, are maintained in accordance with good
business practice and accurately present and reflect in all
material respects, all of the transactions therein described
and there have been no transactions involving EMPS RESEARCH
which properly should have been set forth therein and which
have not been accurately so set forth.
13
5.2 Disclosure. EMPS RESEARCH has and at the Closing Date it will have,
disclosed all events, conditions and facts materially affecting the
business and prospects of EMPS RESEARCH. EMPS RESEARCH has not now and
will not have at the Closing Date, withheld knowledge of any such
events, conditions and facts which it knows, or has reasonable grounds
to know, may materially affect EMPS RESEARCH's business and prospects.
Neither this Agreement, nor any certificate, exhibit, schedule or other
written document or statement, furnished to CONDESA or the CONDESA
Shareholders by EMPS RESEARCH in connection with the transactions
contemplated by this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to be stated in order to make the statements contained
herein or therein not misleading.
Section 6
Access and Information
6.1 As to CONDESA. Subject to the protections provided by subsection 9.4
herein, CONDESA shall give to EMPS RESEARCH and to EMPS RESEARCH's
counsel, accountants and other representatives full access during
normal business hours throughout the period prior to the Closing, to
all of CONDESA's properties, books, contracts, commitments, and
records, including information concerning products and customer base,
and patents held by, or assigned to, CONDESA, and furnish EMPS RESEARCH
during such period with all such information concerning CONDESA's
affairs as EMPS RESEARCH reasonably may request.
6.2 As to EMPS RESEARCH. Subject to the protections provided by subsection
9.4 herein, EMPS RESEARCH shall give to CONDESA, the CONDESA
Shareholders and their counsel, accountants and other representatives,
full access, during normal business hours throughout the period prior
to the Closing, to all of EMPS Research's properties, books, contracts,
commitments, and records, if any, and shall furnish CONDESA and the
CONDESA Shareholders during such period with all such information
concerning EMPS RESEARCH's affairs as CONDESA and the CONDESA
Shareholders reasonably may request.
Section 7
Covenants of CONDESA and Certain Shareholders
7.1 No Solicitation. For a period of forty-five (45) days from the date of
this Agreement, CONDESA and those Shareholders listed on Exhibit A, to
the extent within each Shareholder's control, will use their best
efforts to cause its officers, employees, agents and representatives
not, directly or indirectly, to solicit, encourage, or initiate any
discussions with, or indirectly to solicit, encourage, or initiate any
discussions with, to, any person or entity other than EMPS RESEARCH and
its officers, employees, and agents, concerning any merger, sale of
substantial assets, or similar transaction involving CONDESA, or any
sale of any of its capital stock or of the capital stock held by such
Shareholders in excess of fifty percent (50%) of such Shareholder's
current stock holdings except as otherwise disclosed in this Agreement.
CONDESA will notify EMPS RESEARCH immediately upon receipt of an
inquiry, offer, or proposal relating to any of the foregoing. None of
14
the foregoing shall prohibit providing information to others in a
manner in keeping with the ordinary conduct of CONDESA's business, or
providing information to government authorities.
7.2 Conduct of Business Pending the Transaction. CONDESA and those
Shareholders listed on Exhibit A, to the extent within each
Shareholder's control, covenant and agree with EMPS RESEARCH that,
prior to the consummation of the transaction called for by this
Agreement, and Closing, or the termination of this Agreement pursuant
to its terms, unless EMPS RESEARCH shall otherwise consent in writing,
and except as otherwise contemplated by this Agreement, CONDESA and
those Shareholders listed on Exhibit A, to the extent within each
Shareholder's control, will comply with each of the following:
(a) Its business shall be conducted only in the ordinary and usual
course. CONDESA shall use reasonable efforts to keep intact
its business organization and good will, keep available the
services of its respective officers and employees, and
maintain good relations with suppliers, creditors, employees,
customers, and others having business or financial
relationships with it, and it shall immediately notify EMPS
RESEARCH of any event or occurrence which is material to, and
not in the ordinary and usual course of business of CONDESA.
(b) It shall not (i) amend its Articles of Incorporation or Bylaws
or (ii) split, combine, or reclassify any of its outstanding
securities, or declare, set aside, or pay any dividend or
other distribution on, or make or agree or commit to make any
exchange for or redemption of any such securities payable in
cash, stock or property.
(c) It shall not (i) issue or agree to issue any additional shares
of, or rights of any kind to acquire any shares of, its
capital stock of any class, or (ii) enter into any contract,
agreement, commitment, or arrangement with respect to any of
the foregoing, except as set forth in this Agreement.
(d) It shall not create, incur, or assume any long-term or
short-term indebtedness for money borrowed or make any capital
expenditures or commitment for capital expenditures, except in
the ordinary course of business and consistent with past
practice.
(e) It shall not (i) adopt, enter into, or amend any bonus, profit
sharing, compensation, stock option, warrant, pension,
retirement, deferred compensation, employment, severance,
termination or other employee benefit plan, agreement, trust
fund, or arrangement for the benefit or welfare of any
officer, director, or employee, or (ii) agree to any material
(in relation to historical compensation) increase in the
compensation payable or to become payable to, or any increase
in the contractual term of employment of, any officer,
director or employee except, with respect to employees who are
not officers or directors, in the ordinary course of business
in accordance with past practice, or with the written approval
of EMPS RESEARCH.
(f) It shall not sell lease, mortgage, encumber, or otherwise
dispose of or grant any interest in any of its assets or
15
properties except for: (i) sales, encumbrances, and other
dispositions or grants in the ordinary course of business and
consistent with past practice; (ii) liens for taxes not yet
due; (iii) liens or encumbrances that are not material in
amount or effect and do not impair the use of the property, or
(iv) as specifically provided for or permitted in this
Agreement.
(g) It shall not enter into any material agreement, commitment, or
understanding, whether in writing or otherwise, with respect
to any of the matters referred to in subparagraphs (a) through
(f) above.
(h) It will continue properly and promptly to file when due all
federal, state, local, foreign, and other tax returns,
reports, and declarations required to be filed by it, and will
pay, or make full and adequate provision for the payment of,
all taxes and governmental charges due from or payable by it.
(i) It will comply with all laws and regulations applicable to it
and its operations.
Section 8
Covenants of EMPS RESEARCH
8.1 No Solicitation. For a period of forty-five (45) days from the date of
this Agreement, EMPS RESEARCH will not discuss or negotiate with any
other corporation, firm or other person or entertain or consider any
inquiries or proposals relating to the possible disposition of its
shares of capital stock, or its assets, and will conduct business only
in the ordinary course. Notwithstanding the foregoing, EMPS RESEARCH
shall be free to engage in activities mentioned in the preceding
sentence, which are designed to further the mutual interests of the
parties to this Agreement.
8.2 Conduct of EMPS RESEARCH Pending Closing. EMPS RESEARCH covenants and
agrees with CONDESA that, prior to the consummation of the transactions
called for by this Agreement, and Closing, or the termination of this
Agreement pursuant to its terms, unless CONDESA shall otherwise consent
in writing, and except as otherwise contemplated by this Agreement,
EMPS RESEARCH will comply with each of the following.
(a) No change will be made in EMPS RESEARCH's Certificate of
Incorporation or Bylaws or in EMPS RESEARCH's authorized or
issued shares of stock, except as contemplated in this
Agreement or as may be first approved in writing by CONDESA.
(b) No dividends shall be declared, no stock options granted and
no employment agreements shall be entered into with officers
or directors in EMPS RESEARCH, except as may be first approved
in writing by CONDESA.
(c) It shall not (i) issue or agree to issue any additional shares
of, or rights of any kind to acquire any shares of, its
capital stock of any class, or (ii) enter into any contract,
agreement, commitment, or arrangement with respect to any of
the foregoing, except as set forth in this Agreement.
16
(d) It shall not create, incur, or assume any long-term or
short-term indebtedness for money borrowed or make any capital
expenditures or commitment for capital expenditures, except in
the ordinary course of business and consistent with past
practice.
(e) It shall not (i) adopt, enter into, or amend any bonus, profit
sharing, compensation, stock option, warrant, pension,
retirement, deferred compensation, employment, severance,
termination or other employee benefit plan, agreement, trust
fund, or arrangement for the benefit or welfare of any
officer, director, or employee, or (ii) agree to any material
(in relation to historical compensation) increase in the
compensation payable or to become payable to, or any increase
in the contractual term of employment of, any officer,
director or employee except, with respect to employees who are
not officers or directors, in the ordinary course of business
in accordance with past practice, or with the written approval
of EMPS RESEARCH.
(f) It shall not sell lease, mortgage, encumber, or otherwise
dispose of or grant any interest in any of its assets or
properties except for: (i) sales, encumbrances, and other
dispositions or grants in the ordinary course of business and
consistent with past practice; (ii) liens for taxes not yet
due; (iii) liens or encumbrances that are not material in
amount or effect and do not impair the use of the property, or
(iv) as specifically provided for or permitted in this
Agreement.
(g) It shall not enter into any material agreement, commitment, or
understanding, whether in writing or otherwise, with respect
to any of the matters referred to in subparagraphs (a) through
(f) above.
(h) It will continue properly and promptly to file when due all
federal, state, local, foreign, and other tax returns,
reports, and declarations required to be filed by it, and will
pay, or make full and adequate provision for the payment of,
all taxes and governmental charges due from or payable by it.
(i) It will comply with all laws and regulations applicable to it
and its operations.
Section 9
Additional Covenants of the Parties
9.1 Cooperation. Both CONDESA and EMPS RESEARCH will cooperate with each
other and their respective counsel, accountants and agents in carrying
out the transaction contemplated by this Agreement, and in delivering
all documents and instruments deemed reasonably necessary or useful by
the other party. Furthermore, both CONDESA and EMPS RESEARCH shall
collaborate on the preparation and dissemination of an offer, which the
Board of Directors of CONDESA shall approve and recommend, to the
CONDESA Stockholders, to exchange their outstanding shares of CONDESA
Common Stock for shares of EMPS RESEARCH Common Stock.
17
9.2 Expenses. Each of the parties hereto shall pay all of its respective
costs and expenses (including attorneys' and accountants' fees, costs
and expenses) incurred in connection with this Agreement and the
consummation of the transactions contemplated herein.
9.3 Publicity. Prior to the Closing, any written news releases or public
disclosure by either party pertaining to this Agreement shall be
submitted to the other party for its review and approval prior to such
release or disclosure, provided, however, that (a) such approval shall
not be unreasonably withheld, and (b) such review and approval shall
not be required of disclosures required to comply, in the judgment of
counsel, with federal or state securities or corporate laws or
policies.
9.4 Confidentiality. While each party is obligated to provide access to and
furnish information in accordance with Section 6 herein, it is
understood and agreed that such disclosure and information subsequently
obtained as a result of such disclosures are proprietary and
confidential in nature. Each party agrees to hold such information in
confidence and not to reveal any such information to any person who is
not a party to this Agreement, or an officer, director or key employee
thereof, and not to use the information obtained for any purpose other
than assisting in its due diligence inquiry in conjunction with the
transaction contemplated by this Agreement. Upon request of any party,
a confidentiality agreement, acceptable to the disclosing party, will
be executed by any person selected to receive such proprietary
information, prior to receipt of such information.
Section 10
Survival of Representations, Warranties and Covenants
10.1 The representations, warranties and covenants of CONDESA and those
Shareholders listed in Exhibit A contained herein shall survive the execution
and delivery of this Agreement, the Closing and the consummation of the
transactions called for by this Agreement. The representations, warranties and
covenants of EMPS RESEARCH contained herein shall survive the execution and
delivery of this Agreement, the Closing and the consummation of the transactions
called for by this Agreement.
Section 11
Conditions Precedent to Obligations of Parties
11.1 Conditions to Obligations of the Parties. The obligations of EMPS
RESEARCH, CONDESA and those Shareholders listed in Exhibit A under this
Agreement shall be subject to the fulfillment, on or prior to the
Closing, of all conditions elsewhere herein set forth, including, but
not limited to, receipt by the appropriate party of all deliveries
required by Sections 4 and 5 herein, and fulfillment, prior to Closing,
of each of the following conditions:
(a) All representations and warranties made by CONDESA
Shareholders listed in Exhibit A and EMPS RESEARCH in this
Agreement shall be true and correct in all material respects
18
on and as of the Closing Date with the same effect as if such
representations and warranties had been made on and as of the
Closing Date.
(b) CONDESA Shareholders listed in Exhibit A and EMPS RESEARCH
shall have performed or complied with all covenants,
agreements and conditions contained in this Agreement on their
part required to be performed or complied with at or prior to
the Closing.
(c) All material authorizations, consents or approvals of any and
all governmental regulatory authorities necessary in
connection with the consummation of the transactions
contemplated by this Agreement shall have been obtained and be
in full force and effect.
(d) The Closing shall not violate any permit or order, decree or
judgment of any court or governmental body having competent
jurisdiction and there shall not have been instituted any
legal or administrative action or proceeding to enjoin the
transaction contemplated hereby or seeking damages from any
party with respect thereto.
11.2 Conditions to Obligations of EMPS RESEARCH. The obligations of EMPS
RESEARCH to consummate the transactions contemplated herein are subject
to satisfaction (or waiver by it) of the following conditions:
(a) Each CONDESA Shareholder acquiring Exchange Stock will be
required, at Closing, to submit an agreement confirming that
all the Exchange Stock received will be acquired for
investment and not with a view to, or for sale in connection
with, any distribution thereof, and agreeing not to transfer
any of the Exchange Stock for a period of two years from the
date of the Closing, except for those transfers falling within
the exemption from registration under the Securities Act of
1933 and any applicable state securities laws, which transfers
do not constitute a public distribution of securities, and in
which the transferees execute an investment letter in form and
substance satisfactory to counsel for EMPS RESEARCH. The
foregoing provision shall not prohibit the registration of
those shares at any time following the Closing. Each CONDESA
Shareholder acquiring Exchange Stock will be required to
transfer to EMPS RESEARCH at the Closing his/her respective
CONDESA Shares, free and clear of all liens, mortgages,
pledges, encumbrances or changes, whether disclosed or
undisclosed.
(b) All schedules, prepared by CONDESA shall be current or updated
as necessary as of the Closing Date.
(c) Each party shall have received favorable opinions from the
other party's counsel on such matters in connection with the
transactions contemplated by this Agreement as are reasonable.
(d) If shareholders, who in the aggregate own five percent (5%) or
more of the CONDESA shares of Common Stock, dissent from the
proposed share exchange, or are unable or for any reason
19
refuse to transfer any or all of their CONDESA shares of
Common Stock to EMPS RESEARCH in accordance with Section 1 of
this Agreement, EMPS RESEARCH, at its option, may terminate
this Agreement.
(e) Each party shall have satisfied itself that since the date of
this Agreement the business of the other party has been
conducted in the ordinary course. In addition, each party
shall have satisfied itself that no withdrawals of cash or
other assets have been made and no indebtedness has been
incurred since the date of this Agreement, except in the
ordinary course of business or with respect to services
rendered or expenses incurred in connection with the Closing
of this Agreement, unless said withdrawals or indebtedness
were either authorized by the terms of this Agreement or
subsequently consented to in writing by the parties.
(g) Each party covenants that, to the best of its knowledge, it
has complied in all material respects with all applicable
laws, orders and regulations of federal, state, municipal
and/or other governments and/or any instrumentality thereof,
domestic or foreign, applicable to their assets, to the
business conducted by them and to the transactions
contemplated by this Agreement.
11.3 Conditions to Obligation of CONDESA and the CONDESA Shareholders. The
obligations of CONDESA and the CONDESA Shareholders listed in Exhibit A
to consummate the transactions contemplated herein are subject to
satisfaction (or waiver by them) of the following conditions:
(a) EMPS RESEARCH shall have provided to CONDESA through September
30, 2004, all unaudited financial statements prepared in
accordance with generally accepted accounting principles by
independent accountants of EMPS RESEARCH. EMPS RESEARCH shall
also provide, as of a date within thirty days of Closing, an
update on any material change in the aforementioned financial
statements.
(b) Each party shall have granted to the other party (acting
through its management personnel, counsel, accountants or
other representatives designated by it) full opportunity to
examine its books and records, properties, plants and
equipment, proprietary rights and other instruments, rights
and papers of all kinds in accordance with Sections 4 and 5
hereof, and each party shall be satisfied to proceed with the
transactions contemplated by this Agreement upon completion of
such examination and investigation.
(c) EMPS RESEARCH and CONDESA shall agree to indemnify each other
party against any liability to any broker or finder to which
that party may become obligated.
(d) The Exchange shall be approved by the Board of Directors of
both CONDESA and EMPS RESEARCH. Furthermore, the Exchange
shall be approved by the shareholders of CONDESA and EMPS
RESEARCH, if deemed necessary or appropriate by counsel for
the same, within thirty (30) days following execution of this
Agreement. If such a meeting is deemed necessary, the
management of CONDESA and EMPS RESEARCH agree to recommend
approval to their respective Shareholders and to solicit
proxies in support of the same.
20
(f) CONDESA agrees, immediately following the Closing of this
Agreement, to use its best efforts to amend EMPS RESEARCH's
Certificate of Incorporation to change EMPS RESEARCH's name to
"Bekem Metals, Inc." or to a name that is substantially
similar.
(g) EMPS RESEARCH and CONDESA and their respective legal counsel
shall have received copies of all such certificates, opinions
and other documents and instruments as each party or its legal
counsel may reasonably request pursuant to this Agreement or
otherwise in connection with the consummation of the
transactions contemplated hereby, and all such certificates,
opinions and other documents and instruments received by each
party shall be reasonably satisfactory, in form and substance,
to each party and its legal counsel.
(h) Both CONDESA and EMPS RESEARCH shall have the right to waive
any or all of the conditions precedent to its obligations
hereunder not otherwise legally required; provided, however,
that no waiver by a party of any condition precedent to its
obligations hereunder shall constitute a waiver by such party
of any other condition.
(i) EMPS RESEARCH shall have obtained all necessary Blue Sky
approvals or exemptions for the issuance of the Exchange Stock
required prior to the Closing Date
Section 12
Termination, Amendment, Waiver
12.1 This Agreement may be terminated at any time prior to the Closing, and
the contemplated transactions abandoned, without liability to either
party, except with respect to the obligations of EMPS RESEARCH, CONDESA
and those CONDESA Shareholders listed in Exhibit A under Section 9.4
hereof:
(a) By mutual agreement of EMPS RESEARCH and CONDESA;
(b) If the Closing (as defined in Section 3) has not have taken
place on or prior to January 31, 2005, this Agreement can be
terminated upon written notice given by EMPS RESEARCH or
CONDESA which is not in material default;
(c) By EMPS RESEARCH, if in its reasonable believe there has been
a material misrepresentation or breach of warranty on the part
of any Shareholder listed in Exhibit A in the representations
and warranties set forth in the Agreement.
(d) By CONDESA or a majority of those Shareholders listed in
Exhibit A (as measured by their equity interest) if, in the
reasonable belief of CONDESA or any such Shareholders, there
has been a material misrepresentation or breach of warranty on
the part of EMPS RESEARCH in the representations and
warranties set forth in the Agreement;
21
(e) By EMPS RESEARCH if, in its opinion or that of its counsel,
the Exchange does not qualify for exemption from registration
under applicable federal and state securities laws, or
qualification, if obtainable, cannot be accomplished in EMPS
RESEARCH's opinion or that of its counsel, without
unreasonable expense or effort;
(f) By EMPS RESEARCH or by a majority of those Shareholders listed
in Exhibit A (as measured by their equity interest) if either
party shall determine in its sole discretion that the Exchange
has become inadvisable or impracticable by reason of the
institution or threat by state, local or federal governmental
authorities or by any other person of material litigation or
proceedings against any party [it being understood and agreed
that a written request by a governmental authority for
information with respect to the Exchange, which information
could be used in connection with such litigation or
proceedings, may be deemed to be a threat of material
litigation or proceedings regardless of whether such request
is received before or after the signing of this Agreement];
(g) By EMPS RESEARCH if the business or assets or financial
condition of CONDESA, taken as a whole, have been materially
and adversely affected, whether by the institution of
litigation or by reason of changes or developments or in
operations in the ordinary course of business or otherwise;
or, by a majority of those Shareholders listed in Exhibit A
(as measured by their equity interest) if the business or
assets or financial condition of EMPS RESEARCH, taken as a
whole, have been materially and adversely affected, whether by
the institution of litigation or by reason of changes or
developments or in operations in the ordinary course of
business or otherwise;
(h) By EMPS RESEARCH if holders of five percent (5%) or more of
the CONDESA Shares fail to tender their stock at the Closing
of the Exchange;
(i) By EMPS RESEARCH or CONDESA if, in the opinion of EMPS
RESEARCH's independent accountants, it should appear that the
combined entity will not be auditable to SEC accounting
standards;
(j) By CONDESA if EMPS RESEARCH fails to perform material
conditions set forth in Sub-Section 11.1 and 11.3 herein;
(k) By CONDESA if examination of EMPS RESEARCH's books and records
pursuant to Section 5 herein uncovers a material deficiency;
(l) By EMPS RESEARCH if CONDESA fails to perform material
conditions set forth in Sub-Section 11.1 and 11.2 herein; and
(m) By EMPS RESEARCH if examination of CONDESA's books and records
pursuant to Section 4 herein uncovers a material deficiency.
12.2 No modification or amendment of any provision of this Agreement shall
be effective unless specifically made in writing and duly signed by the
party to be bound.
22
Section 13
Miscellaneous
13.1 Entire Agreement. This Agreement (including the Exhibits and Schedules
hereto) contains the entire agreement between the parties with respect
to the transactions contemplated hereby, and supersedes all
negotiations, representations, warranties, commitments, offers,
contracts, and writings prior to the date hereof. No waiver and no
modification or amendment of any provision of this Agreement shall be
effective unless specifically made in writing and duly signed by the
party to be bound thereby.
13.2 Binding Agreement.
(a) This Agreement shall become binding upon the parties when, but
only when, it shall have been signed on behalf of all parties.
(b) Subject to the condition stated in subsection (a), above, this
Agreement shall be binding upon, and inure to the benefit of,
the respective parties and their legal representatives,
successors and assigns. This Agreement, in all of its
particulars, shall be enforceable by the means set forth in
subsection 13.9 for the recovery of damages or by way of
specific performance and the terms and conditions of this
Agreement shall remain in full force and effect subsequent to
Closing and shall not be deemed to be merged into any
documents conveyed and delivered at the time of Closing. In
the event that subsection 13.9 is found to be unenforceable as
to any party for any reason or is not invoked by any party,
and any person is required to initiate any action at law or in
equity for the enforcement of this Agreement, the prevailing
party in such litigation shall be entitled to recover from the
party determined to be in default, all of its reasonable costs
incurred in said litigation, including attorneys' fees.
13.3 Shareholders Owning at Least Five Percent (5%) of the Outstanding
Common Stock of CONDESA. The Shareholders owning at least 5% of the
outstanding common stock of CONDESA (see Exhibit A hereto) are only
executing this Agreement with respect to Sections 3.4, 4, 7, 9.4, 10,
11.1 and 11.3, 12.1(d and f ), 13.2, 13.3, 13.4, 13.8, and 13.9.
13.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which may be deemed an original, but all of which
together, shall constitute one and the same instrument.
13.5 Severability. If any provisions hereof are to be held invalid or
unenforceable by any court of competent jurisdiction or as a result of
future legislative action, such holding or action shall be strictly
construed and shall not affect the validity or effect or any other
provision hereof.
13.6 Assignability. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto; provided,
23
that neither this Agreement nor any right hereunder shall be assignable
by CONDESA or EMPS RESEARCH without prior written consent of the other
party.
13.7 Captions. The captions of the various Sections of this Agreement have
been inserted only for convenience of reference and shall not be deemed
to modify, explain, enlarge or restrict any of the provisions of this
Agreement.
13.8 Governing Law. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the State of
Utah.
13.9 Dispute Resolution. In the event of a dispute between the parties
hereto involving a claim of breach of representation or warranty
hereunder, or to enforce a covenant herein (either or both of which are
referred to hereafter as a "Claim"), if it is the desire of any party
for quick resolution, the rights and obligations of the parties hereto
arising under the terms of this Agreement with respect to such Claims
and/or resolution of such disputes will be by the means of the judgment
of an independent third party ("Rent-A-Judge") who has been selected
and hired through the mutual agreement of the parties. The utilization
of this subsection 13.9, if invoked by any party hereto, shall be the
exclusive remedy for resolving a Claim regardless of whether legal
action has or has not been otherwise instituted. If legal action has
been instituted by any party, and this subsection 13.9 is invoked in a
timely manner, any such legal action shall be void ab initio and
immediately withdrawn.
(a) In the event of a Claim by any party, any party may make a
written request upon the other parties for a "Rent-A-Judge." A
request by any party for the employment of a "Rent-A-Judge" to
resolve the Claim shall be binding on all other parties to
this Agreement in accordance with the terms hereof.
The parties may agree upon one "Rent-A-Judge," but in the
event that they cannot agree, there shall be three, one named
in writing by each of the parties within twenty (20) days
after the initial demand for employment of a "Rent-A-Judge,"
and a third chosen by the two appointed. Should either party
refuse or neglect to join in the appointment of the
"Rent-A-Judge(s)" or to furnish the "Rent-A-Judge(s) with any
papers or information demanded, the "Rent-A-Judge(s)" are
empowered by all parties to this Agreement to proceed ex
parte.
(b) Claim resolution proceedings shall take place in the City or
County of Salt Lake, State of Utah, and the hearing before the
"Rent-A-Judge(s)" of the matter to be arbitrated shall be at
the time and place within said city or county as is selected
by the "Rent-A-Judge(s)." The "Rent-A-Judge(s)" shall select
such time and place promptly after appointment and shall give
written notice thereof to each party at least thirty (30) days
prior to the date so fixed. At the hearing, any relevant
evidence may be presented by either party, and the formal
rules of evidence applicable to judicial proceedings shall not
govern. Evidence may be admitted or excluded in the sole
discretion of the "Rent-A-Judge(s)." Said "Rent-A-Judge(s)"
24
shall hear and determine the matter and shall execute and
acknowledge their award in writing and cause a copy thereof to
be delivered to each of the parties.
(c) If there is only one (1) "Rent-A-Judge," his or her decision
shall be binding and conclusive on the parties, and if there
are three (3) "Rent-A-Judge(s)" the decision of any two (2)
shall be binding and conclusive.
(d) If three (3) "Rent-A-Judge(s)" are selected under the
foregoing procedure, but two (2) of the three (3) fail to
reach an agreement in the determination of the matter in
question, the matter shall be decided by three (3) new
"Rent-A-Judge(s)" who shall be appointed and shall proceed in
the same manner, and the process shall be repeated until a
decision is finally reached by two (2) of the three (3)
"Rent-A-Judge(s)" selected.
(e) The costs of such Claim resolution shall be borne by the
parties equally and each party shall pay its own attorneys'
fees; provided, however, that in the event either party
challenges or in any way seeks to have the Rent-A-Judge's
decision or award vacated or corrected or modified, if the
challenge is denied or the original decision or award is
affirmed, the challenging party shall pay the costs and fees,
including reasonable attorneys' fees, of the non-challenging
party, both for the challenge and for the original Claim
resolution process.
13.10 Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and delivered in person or sent by
certified mail, postage prepaid and properly addressed as follows:
To CONDESA:
Mirgali Kunayev
c/o Mossack Fonseca & Co. (B.V.I.) Ltd.
P.O. Box 3136, Road Town, Tortola
British Virgin Islands
Fax (284) 494-4841
To EMPS RESEARCH:
Terry Chatwin, President
Emps Research Corporation
875 Donner Way, Suite 705
Salt Lake City, Utah 84108
Fax (801) 582-8600
25
With a Copy to:
Ronald Poulton
324 South 400 West, Suite 250
Salt Lake City, Utah 84101
Fax (801) 355-2990
Any party may from time to time change its address for the purpose of
notices to that party by a similar notice specifying a new address, but
no such change shall be deemed to have been given until it is actually
received by the respective party hereto.
All notices and other communications required or permitted under this
Agreement which are addressed as provided in this Section 13.10 if
delivered personally, shall be effective upon delivery; and, if
delivered by mail, shall be effective three days following deposit in
the United States mail, postage prepaid.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EMPS RESEARCH CORPORATION
By:
----------------------------
Terry Chatwin, President
CONDESA PACIFIC, S.A.
By:
----------------------------
Mirgali Kunayev, Director
26
Exhibit List
Exhibit A: Five Percent Shareholders of Condesa Pacific S.A.
Exhibit B: Consent of Board of Directors of Condesa Pacific S.A. .
Exhibit C: Consent of Board of Directors of Emps Research Corporation
Schedule List
Schedule 4.1(b): Condesa Pacific S.A., Common Stock, Options and Warrants
Outstanding
Schedule 4.1(c): Condesa Pacific S.A. Subsidiaries
Schedule 4.1(f): Litigation Involving Condesa Pacific S.A.
Schedule 4.1(h): Absence of Certain Changes - Condesa Pacific S.A.
Schedule 4.1(i): Condesa Pacific S.A. Employee Benefit Plans
Schedule 4.1(j): Asset Ownership Exceptions
Schedule 4.1(l): Operating Permits/Licenses
Schedule 5.1(b): EMPS Research Corporation, Common Stock, Options and Warrants
Outstanding
Schedule 5.1(f): EMPS Research Corporation Subsidiaries
Schedule 5.1(m): EMPS Research Corporation, Tax Matters
27