Exhibit 1
3,000,000 Shares
IPORUSSIA, INC.
Common Stock $.0001 par value
UNDERWRITING AGREEMENT
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New York, New York
________________, 2004
X.X. Xxxxxxxxxx & Co., Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Securities, Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
IPORUSSIA, INC., a Delaware corporation (the "Company"), hereby
confirms the agreement made with respect to the retention of X.X. Xxxxxxxxxx &
Co., Inc. ("HCW") and Xxxxxxx Securities, Inc. ("WSI") (HCW and WSI are
collectively referred to as the "Underwriters"), as the exclusive agents of the
Company, to publicly offer and sell, pursuant to the terms of this Underwriting
Agreement (the "Agreement"), an aggregate of 3,000,000 shares of Common Stock,
$.0001 par value (the "Shares" and such class of stock being herein called the
"Common Stock"), of the Company on a "best efforts, 600,000 share minimum and
3,000,000 share maximum" basis (the "Offering").
The Company hereby severally confirms the agreements made by it with
respect to the sale of the Common Stock by the Company as follows:
1. Representations and Warranties.
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(a) The Company represents and warrants to, and agrees with you,
the Underwriters, as of the date hereof, the Effective Date (as hereinafter
defined) and the Final Closing Date (as hereinafter defined) that:
(i) A registration statement (File No. 33-98247) on
Form SB-2 relating to the public offering of the Shares, including a preliminary
form of prospectus, copies of which have heretofore been delivered to the
Underwriters, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the
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"Commission") thereunder, and has been filed with the Commission under the Act.
The Company proposes to file, prior to the effective date of such registration
statement (the "Effective Date"), an additional amendment or amendments to such
registration statement, copies of which shall be delivered to the Underwriters.
"Preliminary Prospectus" shall mean each prospectus filed pursuant to Rule 430
of the Rules and Regulations. The registration statement (including all
financial statements and exhibits) as amended at the time it becomes effective
and the final prospectus included therein are respectively referred to as the
"Registration Statement" and the "Prospectus", except that (i) if the prospectus
first filed by the Company pursuant to Rule 424(b) of the Rules and Regulations
shall differ from said prospectus as then amended, the term "Prospectus" shall
mean the prospectus first filed pursuant to Rule 424(b), and (ii) if such
registration statement or prospectus is amended or such prospectus is
supplemented after the Effective Date and prior to the termination of the
Offering, the terms "Registration Statement" and "Prospectus" shall mean such
registration statement and prospectus as so amended, and the term "Prospectus"
shall mean the prospectus as so supplemented, or both, as the case may be.
(ii) The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus. When the Registration
Statement becomes effective and at all times subsequent thereto up to the Final
Closing Date (a) the Registration Statement and Prospectus and any amendments or
supplements thereto will contain all statements which are required to be stated
therein in accordance with the Act and the Rules and Regulations, and will in
all respects conform to the requirements of the Act and the Rules and
Regulations; and (b) neither the Registration Statement nor the Prospectus will
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make statements therein not
misleading; provided, however, that the Company makes no representations,
warranties or agreements as to information contained in or omitted from the
Registration Statement or Prospectus in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of the Underwriters
specifically for use in the preparation thereof. It is understood that the
statements set forth in the Prospectus under the heading "Underwriting" and the
identity of counsel to the Underwriters under the heading "Legal Matters"
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in the Registration Statement and Prospectus, as the
case may be.
(iii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of Delaware,
with full power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and is duly qualified to do
business as a foreign corporation and is in good standing in all other
jurisdictions in which the nature of its business or the character or location
of its properties requires such qualification, except where failure to so
qualify will not materially affect the business, properties or financial
condition of the Company.
(iv) The authorized, issued and outstanding capital
stock of the Company as of the date hereof is as set forth in the Prospectus
under "Capitalization"; the shares of issued and outstanding capital stock of
the Company set forth thereunder have been, or will be when issued
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as set forth in the Prospectus, duly authorized, validly issued, fully paid and
non-assessable; no options, warrants or other rights to purchase, agreements or
other obligations to issue, or agreements or other rights to convert any
obligation into, any shares of capital stock of the Company have been granted or
entered into by the Company; and the Common Stock conforms to all statements
relating thereto contained in the Registration Statement and Prospectus.
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company, and assuming due execution of
this Agreement by the other parties hereto, constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as rights to indemnity and contribution hereunder may be limited
by federal or state securities laws and except (A) as the enforceability hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and (B) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
certain equitable defenses and to the discretion of the court before which any
proceedings may be brought. The Company has full power and lawful authority to
authorize, issue and sell the Shares on the terms and conditions set forth
herein, and no consent, approval, authorization or other order of any
governmental authority is required in connection with such authorization, issue
and sale except, such as may be required under the Act or state securities laws.
(vi) Except as described in the Prospectus, the Company
is not in violation, breach or default of or under, and consummation of the
transactions herein contemplated and the fulfillment of the terms of this
Agreement will not conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property or assets
of the Company pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company is a party
or by which the Company may be bound or to which any of the property or assets
of the Company is subject, nor will such action result in any violation of the
provisions of the certificate of incorporation or the by-laws of the Company, or
any statute or any order, rule or regulation applicable to the Company of any
court or of any regulatory authority or other governmental body having
jurisdiction over the Company.
(vii) Subject to the qualifications stated in the
Prospectus, the Company has good and marketable title to its respective
properties and assets described in the Prospectus as owned by it, free and clear
of all liens, charges, encumbrances or restrictions, except such as are not
materially significant or important in relation to their respective businesses;
all of the material leases and subleases under which the Company is the lessor
or sublessor of properties or assets or under which the Company holds properties
or assets as lessee or sublessee as described in the Prospectus are in full
force and effect, and, except as described in the Prospectus, the Company is not
in default in any material respect with respect to any of the terms or
provisions of any of such leases or subleases, and no claim has been asserted by
anyone adverse to rights of the Company as lessor, sublessor, lessee or
sublessee under any of the leases or subleases mentioned above, or affecting or
questioning the right of the Company to continued possession of the leased or
subleased premises or assets under any such lease or sublease, except as
described or referred
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to in the Prospectus; and the Company owns or leases all such properties
described in the Prospectus as are necessary to their operations as now
conducted and, except as otherwise stated in the Prospectus, as proposed to be
conducted as set forth in the Prospectus.
(viii) Xxxxx Xxxxx CPA, who has given his report on
certain financial statements filed and to be filed with the Commission as a part
of the Registration Statement, which are incorporated in the Prospectus, is an
independent public accountant with respect to the Company as required by the Act
and the Rules and Regulations.
(ix) The financial statements, together with related
notes, set forth in the Prospectus, present fairly the financial position and
results of operations and changes in financial position of the Company on the
basis stated in the Registration Statement, at the respective dates and for the
respective periods to which they apply. Said statements and related notes have
been prepared in accordance with accounting principles generally accepted in the
United States of America applied on a basis which is consistent during the
periods involved.
(x) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus, the Company
has not incurred any liabilities or obligations, direct or contingent, not in
the ordinary course of business (other than deferred offering costs related to
the Offering), nor has it entered into any transaction not in the ordinary
course of business, which is material to the business of the Company. There has
not been any change in the capital stock of, or any incurrence of long-term debt
by, the Company or any issuance of options, warrants or other rights to purchase
the capital stock of the Company or any adverse change or any development
involving, so far as the Company can now reasonably foresee, a prospective
adverse change in the condition (financial or other), net worth, results of
operations, business, key personnel or properties that would be material to the
business or financial condition of the Company. The Company has not become a
party to, and neither the business nor the property of the Company has become
the subject of, any material litigation whether or not in the ordinary course of
business.
(xi) Except as set forth in the Prospectus, there is
not now pending or, to the knowledge of the Company, threatened, any action,
suit or proceeding to which the Company is a party before or by any court or
governmental agency or body, which might result in any material adverse change
in the condition (financial or other), business prospects, net worth, or
properties of the Company nor are there any actions, suits or proceedings
related to environmental matters or related to discrimination on the basis of
age, sex, religion or race; and no labor disputes involving the employees of the
Company exist or are imminent which might be expected to adversely affect the
conduct of the business, property or operations or the financial condition or
earnings of the Company.
(xii) Except as disclosed in the Prospectus, the
Company has filed all necessary federal, state and foreign income and franchise
tax returns and has paid all taxes shown as due thereon; and there is no tax
deficiency which has been or, to the knowledge of the Company, might be asserted
against the Company.
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(xiii) The Company has sufficient licenses, permits and
other governmental authorizations as are required for the conduct of its
business or the ownership of its properties as described in the Prospectus and
is, in all material respects, complying therewith and owns or possesses adequate
rights to use all material patents, patent applications, trademarks, service
marks, trade-names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of such business and has not
received any notice of conflict with the asserted rights of others in respect
thereof. To the best knowledge of the Company, none of the activities or
business of the Company is in violation of, or cause the Company to violate, any
law, rule, regulation or order of the United States, any state, county,
locality, or other jurisdiction, including, without limitation, Russia, or of
any agency or body of the United States or of any state, county, locality, or
other jurisdiction, including, without limitation, Russia, the violation of
which would have a material adverse effect upon the condition (financial or
otherwise), business, property, prospective results of operations, or net worth
of the Company.
(xiv) The Company has not directly or indirectly, at
any time (i) made any contributions to any candidate for political office, or
failed to disclose fully any such contribution in violation of law or (ii) made
any payment to any state, federal or foreign governmental officer or official,
or other person charged with similar public or quasi-public duties, other than
payments or contributions required or allowed by applicable law. The Company's
internal accounting controls and procedures are sufficient to cause the Company
to comply in all material respects with the Foreign Corrupt Practices Act of
1977, as amended.
(xv) On each Closing Date (as hereinafter defined), all
transfer or other taxes that are required to be paid in connection with the sale
and transfer of the Common Stock will have been fully paid or provided for by
the Company and all laws imposing such taxes will have been fully complied with.
(xvi) All contracts and other documents of the Company
that are under the Rules and Regulations required to be filed as exhibits to the
Registration Statement have been so filed.
(xvii) As of the date hereof, the Company has no
subsidiaries. The Company intends to form a subsidiary to register as a
broker-dealer following its receipt of the minimum proceeds from the Offering.
(xviii) The Company has not entered into any agreement
pursuant to which any person is entitled, either directly or indirectly, to
compensation from the Company for services as a finder in connection with the
Offering.
2. Appointment of Agents to Sell the Shares
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(a) Subject to the terms and conditions of this Agreement, and
upon the basis of the representations, warranties, and agreements herein
contained, the Company hereby appoints the Underwriters as its exclusive agents
for a period of 90 days from the Effective Date, subject
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to an extension by mutual agreement of the Company and the Underwriters, for an
additional period not to exceed 90 days, to sell the Shares, and the
Underwriters, on the basis of the representations and warranties of the Company
herein, accept such appointment and agree to use their respective best efforts,
on a 600,000 share minimum and 3,000,000 share maximum basis, to find purchasers
for the Shares. The price at which the Underwriters shall sell the Shares to the
public, as agent for the Company, shall be $1.00 per share, and the Company
shall pay a commission of $.10 per share in respect of such Shares sold on
behalf of the Company by the Underwriters. Ninety percent (90%) of the
underwriting commission will be payable to the Underwriter to which such sales
are attributable and ten percent (10%) of the commission will be payable to the
other Underwriter.
(b) The Company agrees to pay the Underwriters a non-accountable
expense allowance (the "Allowance") of three percent (3%) of such gross proceeds
and will issue warrants to purchase shares of the Company's common stock equal
to 10% of the Shares sold in the Offering at an exercise price of $1.20 per
share (the "Warrants"). HCW shall be entitled to 100% of the Allowance paid with
respect to sales of the first 2,000,000 of the Shares. HCW and WSI will share
the balance of any Allowance paid with respect to the sale of more than
2,000,000 Shares in the ratio of two-thirds (2/3) to HCW and one-third (1/3) to
WSI. HCW and WSI will each be entitled to receive 50% of the Warrants. The
parties hereto acknowledge that the Company has paid HCW an advance of $15,000
against the Allowance and HCW has paid $2,500 of such advance to WSI. If this
Agreement is terminated and no initial closing has occurred, then (i) HCW will
remit to the Company the amount by which $12,500 exceeds HCW's reasonable
out-of-pocket expenses (evidenced by invoices for such expenses) and (ii) WSI
will remit to the Company the amount by which $2,500 exceeds WSI's reasonable
out-of-pocket expenses (evidenced by invoices for such expenses). In addition,
the Company shall pay HCW up to $7,500 and WSI up to $2,500 in reimbursement for
their reasonable out-of-pocket expenses in connection with their due diligence
investigation and background checks into the Company and its officers, in each
case against invoices for such expenses.
(c) Except as otherwise provided herein, whether or not the
Offering is successfully completed, the Company hereby agrees to bear all of the
expenses in connection with the Offering including, but not limited to the
following: filing fees, printing and duplicating costs, advertisements, postage
and mailing expenses with respect to the transmission of Offering material,
registrar and transfer agent fees, escrow agent fees and expenses, fees of the
Company's counsel and accountants, issue and transfer taxes, if any, and "Blue
Sky" counsel fees and expenses. It is agreed that the Company's counsel shall
perform the required Blue Sky legal services.
(d) It is a condition of this Agreement that the Underwriters
shall use their best efforts to sell the Shares on behalf of the Company, that
any and all funds received from such sale, without any deduction therefrom
whatsoever, including, but not limited to, any underwriting commission or any
dealer concession or otherwise, shall be forthwith deposited in an escrow
account at North Fork Bank, as Escrow Agent, pursuant to the terms of an Escrow
Agreement entered into by and among the Company, the Underwriters and the Escrow
Agent. In
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the event a minimum of 600,000 Shares is not sold within 90 days after the
Effective Date (or such later date up to 180 days as may be agreed in writing by
the Company and the Underwriters pursuant to Section 2(a) hereof), all funds
will be promptly refunded to the subscribers in full, without deduction
therefrom but with the interest earned thereon. Certificates will be issued to
purchasers only if the proceeds from the sale of at least 600,000 Shares are
released from escrow to the Company. Until such time as the funds have been
released and the certificates delivered to the purchasers thereof, such
purchasers, if any, will be deemed subscribers and not stockholders. The funds
in escrow will be held for the benefit of those subscribers until released to
the Company and will not be subject to creditors of the Company or for the
expenses of this Offering.
(e) If subscriptions for at least 600,000 Shares (the "Minimum
Offering") have been received in escrow and accepted by the Company prior to the
expiration of the Offering, a closing (the "Initial Closing") shall be held at
the offices of HCW, or such other place as the parties may agree, as soon as
practicable (but not later than 10 business days) following the date when the
parties hereto confirm in writing that subscriptions for the Minimum Offering
have been accepted. After 600,000 Shares have been sold, the Offering will
continue on a "best efforts" basis. At any time prior to the expiration of the
Offering following the Initial Closing and after receipt in escrow and
acceptance by the Company of subscriptions of additional Shares of Common Stock
in increments of at least 500,000 Shares (the "Interim Closing Amount"), one or
more closings (each, an "Interim Closing") shall take place in the manner herein
set forth with respect the Initial Closing; provided, however that the
Underwriters may close with respect to fewer Shares than the Interim Closing
Amount subject to the Company's consent, which shall not be unreasonably
withheld. In the event that the Offering expires prior to receipt in escrow and
acceptance by the Company of an Interim Closing Amount, a final closing shall be
held at such time regardless of the amount then held in escrow (the "Final
Closing"). No Shares will be sold in this Offering after the termination of the
Offering. The Initial Closing, Interim Closing and Final Closing shall each be
referred to herein as a "Closing" and each such Closing shall occur on a
"Closing Date."
(f) In the event of the sale of at least 600,000 Shares, such
concessions from the public offering price may be allowed to selected dealers
and members of the National Association of Securities Dealers, Inc. ("NASD") as
the Underwriters determine and the Underwriters shall furnish the Company with
such information about the proposed distribution arrangements as may be
necessary for inclusion in the Registration Statement.
3. Offering the Shares on Behalf of the Company.
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It is understood that the Underwriters propose to offer the
Shares to the public, solely as agent for the Company, upon the terms and
conditions set forth in the Registration Statement. The Underwriters shall
commence making such offers as agent for the Company on the Effective Date or as
soon thereafter as the Underwriters deem advisable.
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4. Selected Dealers.
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The Underwriters may offer and sell the Shares for the Company's
accounts through selected dealers registered with the NASD, as selected by the
Underwriter pursuant to a form of Selected Dealer Agreement, pursuant to which
the Underwriters may allow a concession (out of the underwriting commission in
the event of the sale of at least 600,000 Shares) within the limits to be set
forth in the Prospectus, but all such sales by Selected Dealers shall be made by
the Company, acting through the Underwriters as agent, and not for the account
of the Underwriters.
5. Covenants of the Company. The Company covenants and agrees with
the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective and, upon notification from the
Commission that the Registration Statement has become effective, will so advise
the Underwriters and will not at any time, whether before or after the Effective
Date, file any amendment to the Registration Statement or supplement to the
Prospectus of which the Underwriters shall not previously have been advised and
furnished with a copy or to which the Underwriters or the Underwriters' counsel
shall have objected in writing or which is not in compliance with the Act and
the Rules and Regulations.
As soon as the Company is advised thereof, the Company will
advise the Underwriters, and confirm the advice in writing, of the receipt of
any comments of the Commission, of the effectiveness of any post-effective
amendment to the Registration Statement, of the filing of any supplement to the
Prospectus or any amended Prospectus, of any request made by the Commission for
amendment of the Registration Statement or for supplementing of the Prospectus
or for additional information with respect thereto, of the issuance by the
Commission or any state or regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Common Stock for offering in any
jurisdiction, or of the institution of any proceedings for any of such purposes,
and will use its best efforts to prevent, the issuance of any such order, and,
if issued, to obtain as soon as possible the lifting thereof.
The Company has caused to be delivered to the Underwriters
copies of each Preliminary Prospectus, and the Company has consented and hereby
consents to the use of such copies for the purposes permitted by the Act. The
Company authorizes the Underwriters and dealers to use the Prospectus in
connection with the sale of the Shares for such period as in the opinion of
counsel to the Underwriters the use thereof is required to comply with the
applicable provisions of the Act and the Rules and Regulations. If, at any time
within such period as a Prospectus is required to be delivered under the Act,
the Company has knowledge of an event or circumstance which materially affects
the Company or the securities of the Company, or which, in the opinion of
counsel for the Company or counsel for the Underwriters, should be set forth in
an amendment of the Registration Statement or a supplement to the Prospectus in
order to make the statements therein not then misleading, in light of the
circumstances existing at the time the
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Prospectus is required to be delivered to a purchaser of the Shares or in case
it shall be necessary to amend or supplement the Prospectus to comply with law
or with the Rules and Regulations, the Company will notify the Underwriters
promptly and forthwith prepare and file with the Commission and furnish to the
Underwriters copies of such amended Prospectus or of such supplement to be
attached to the Prospectus, in such quantities as the Underwriters may
reasonably request, in order that the Prospectus, as so amended or supplemented,
will not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements in the Prospectus, in
the light of the circumstances under which they are made, not misleading. The
preparation and furnishing of any such amendment or supplement to the
Registration Statement or amended Prospectus or supplement to be attached to the
Prospectus shall be without expense to the Underwriters, except that in case the
Underwriters are required, in connection with the sale of the Shares, to deliver
a Prospectus nine months or more after the effective date of the Registration
Statement, the Company will, upon request of and at the expense of the
Underwriters, amend or supplement the Registration Statement and Prospectus and
furnish the Underwriters with reasonable quantities of prospectuses complying
with Section l0(a)(3) of the Act.
The Company will comply with the Act and the Rules and
Regulations in connection with the Offering and issuance of the Shares.
(b) The Company will use its best efforts to qualify to register
the Shares for sale under the securities or "Blue Sky" laws of such
jurisdictions as the Underwriters may designate and will make such applications
and furnish such information as may be required for that purpose and to comply
with such laws, except in any jurisdiction where the Company would be required
to (A) except in New York, register as a securities dealer, (B) qualify
generally to do business as a foreign corporation, (C) subject itself to
taxation or (D) take any action which would subject it to general service of
process. The Company will, from time to time, prepare and file such statements
and reports as are or may be required to continue such qualification in effect
until the completion of the Offering. Underwriters' counsel shall receive copies
of all blue sky filings and a Preliminary and Final Blue Sky Memorandum from
Company's counsel, which Blue Sky Memorandum shall be subject to the reasonable
approval of Underwriters' counsel. Copies of the Memoranda will also be supplied
to the Underwriters. In addition, the Company shall make such application with
Standard & Poors or Mergent (each, a "Rating Agency") as shall be necessary to
enable holders of the Company's Common Stock to trade such Common Stock in the
maximum number of states possible without further registration or qualification
thereof by the Company and shall use its best efforts to cause such Rating
Agency to approve such application.
(c) If the sale of the Common Stock provided for herein is not
consummated for any reason, the Company shall pay all costs and expenses
incident to the performance of the Company's obligations hereunder, including,
but not limited to, all of the expenses itemized in Section 2(c) , including the
Accountable Expenses of the Underwriters and the Underwriters' reasonable legal
fees.
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(d) For a period of at least five (5) years from the Final
Closing Date and thereafter as required by Rule 14a-3 under the Securities
Exchange Act of 1934, the Company, at its expense, will furnish to its
stockholders an annual report (including financial statements audited by
independent public accountants), in reasonable detail, and at its expense, will
furnish to the Underwriters during the period ending five (5) years from the
Final Closing Date, (i) as soon as practicable after the end of each fiscal
year, a balance sheet of the Company and any of its subsidiaries as at the end
of such fiscal year, together with statements of income and cash flows of the
Company and any subsidiaries for such fiscal year, all in reasonable detail and
accompanied by a copy of the certificate or report thereon of independent
accountants; (ii) as soon as they are available, a copy of all reports
(financial or other) mailed to stockholders; (iii) as soon as they are
available, a copy of all non-confidential reports and financial statements
furnished to or filed with the Commission; and (iv) such other information as
the Underwriters may from time to time reasonably request.
(e) In the event the Company has an active subsidiary or
subsidiaries, such financial statements referred to in subsection (d) above will
be on a consolidated basis to the extent the accounts of the Company and its
subsidiary or subsidiaries are consolidated in reports furnished to its
stockholders generally.
(f) The Company will deliver to the Underwriters at or before
the Initial Closing Date, two signed copies of the Registration Statement,
including all financial statements and exhibits filed therewith, and of all
amendments thereto, and will deliver to the Underwriters such number of copies
of the Registration Statement, including such financial statements but without
exhibits, and of all amendments thereto, as the Underwriters may reasonably
request. The Company will deliver to or upon the order of the Underwriters, from
time to time until the Effective Date as many copies of any Preliminary
Prospectus filed with the Commission prior to the Effective Date as the
Underwriters may reasonably request. The Company will deliver to the
Underwriters on the Effective Date and thereafter for so long as a Prospectus is
required to be delivered under the Act, from time to time, as many copies of the
Prospectus, in final form, or as thereafter amended or supplemented, as the
Underwriters may from time to time reasonably request.
(g) The Company will make generally available to its
Stockholders and deliver to the Underwriters as soon as it is practicable to do
so, an earnings statement (which need not be audited) covering a period of at
least twelve consecutive months beginning after the Effective Date, which shall
satisfy the requirements of Section 11(a) of the Act (which may be in a manner
complying with Rule 158 under the Act).
(h) The Company will apply the net proceeds from the sale of the
Common Stock for the purposes set forth under "Use of Proceeds" in the
Prospectus, and will file such reports with the Commission with respect to the
sale of the Common Stock and the application of the proceeds therefrom as may be
required pursuant to Rule 463 under the Act.
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(i) The Company will, promptly upon the Underwriters' request,
prepare and file with the Commission any amendments or supplements to the
Registration Statement, Preliminary Prospectus or Prospectus and take any other
action which in the reasonable opinion of Snow Xxxxxx Xxxxxx P.C., counsel to
HCW, and Xxxxx & Xxxxx, PLLC, counsel to WSI (collectively "Counsel to the
Underwriters"), may be reasonably necessary or advisable in connection with the
distribution of the Common Stock, and will use its best efforts to cause the
same to become effective as promptly as possible.
(j) Concurrently with the effectiveness of the Registration
Statement, the Company will register its Common Stock under the Securities
Exchange Act of 1934 and will effect and maintain such registration for at least
five (5) years from the Final Closing Date.
(k) The Company and each of Xxxxxxxx Kuznetzov, Xxxxxxx X.
Xxxxxx and Xxxxxxx Xxxxxxxxx, the principal stockholders of the Company,
represent that it or he has not taken and agrees that it or he will not take,
directly or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result in the stabilization or
manipulation of the price of the Common Stock or to facilitate the sale or
resale of the Common Stock.
(l) During the 90 day period commencing on the Final Closing
Date, the Company will not, without the prior written consent of the
Underwriters grant options to purchase shares of Common Stock at a price less
than the initial public offering price.
(m) The Company shall not file an application to list its Common
Stock on the Nasdaq Over-the-Counter Bulletin Board, the Nasdaq Stock Market, or
any securities exchange until the earlier of the Final Closing Date or the
termination of the Offering.
6. Conditions of Underwriters' Obligation.
--------------------------------------
The obligations of the Underwriters to act as agent for the
Company are subject to the accuracy (as of the date hereof, and as of each
Closing Date) of and compliance with the representations and warranties of the
Company herein, to the accuracy of statements of officers of the Company made
pursuant to the provisions hereof, to the performance by the Company of its
obligations to be performed hereunder at or prior to each Closing Date, and to
the following conditions:
(a) Prior to the Initial Closing Date, the Registration
Statement shall have become effective, the Company shall have registered its
Common Stock under the Exchange Act, or a Rating Agency shall have approved the
Company's application as contemplated by Section 5(b); and prior to each Closing
Date, the Registration Statement shall remain effective and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that or similar purpose shall have been instituted
or shall be pending or, to the Underwriters' knowledge or to the knowledge of
the Company, shall be contemplated by the
11
Commission; any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of Counsel to the
Underwriters; and no stop order shall be in effect denying or suspending
effectiveness of such qualification nor shall any stop order proceedings with
respect thereto be instituted or pending or threatened under such law.
(b) The Underwriters shall not have advised the Company that the
Registration Statement, the Prospectus, or any amendment or supplement thereto
contains any untrue statement of fact which, in the reasonable opinion of
Counsel for the Underwriters, is material or omits to state a fact which, in the
opinion of such Counsel, is material and is required to be stated therein or
necessary to make the statements therein not misleading.
(c) At each Closing, the Underwriters shall have received the
opinion, dated as of the Closing Date, of Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP,
counsel for the Company, in form and substance reasonably satisfactory to
Counsel for the Underwriters, to the effect that:
(i) the Company and, to the extent that the Company has
any subsidiaries on such Closing Date, each subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation with full corporate power and
authority to own its property and conduct its business as described in the
Registration Statement and Prospectus and is duly qualified or licensed to do
business as a foreign corporation and is in good standing in each other
jurisdiction in the United States in which the ownership or leasing of its
property or conduct of its business as described in the Prospectus requires such
qualification, except to the extent the failure to so qualify or be in good
standing would not have a material adverse effect on the Company.
(ii) to the best knowledge of such counsel, except as
described in the Prospectus, (a) the Company has obtained, or is in the process
of obtaining, all United States licenses, United States permits and other United
States governmental authorizations necessary to the conduct of its business as
described in the Prospectus, (b) such licenses, permits and other governmental
authorizations obtained are in full force and effect, and (c) the Company is in
all material respects complying therewith;
(iii) as of December 31, 2003, the authorized capital
stock of the Company is as set forth under "Capitalization" in the Prospectus,
and the outstanding shares of the Company's Common Stock as reflected in the
Prospectus have been duly authorized are validly issued, fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus. Under the Company's certificate of incorporation and by-laws and
under the Delaware General Corporation Law (the "DGCL"), the outstanding shares
of Common Stock of the Company have not been issued in violation of the
preemptive rights of any stockholder and the stockholders of the Company and do
not have any preemptive rights or other rights to subscribe for or to purchase
any of the Common Stock. Except as provided under the DGCL and the Act, there
are no restrictions upon the voting or transfer of any of the outstanding shares
of Common Stock of the Company nor will there be any restrictions upon the
voting or transfer of
12
any of the Shares. The Common Stock conforms to the description thereof
contained in the Prospectus. The Shares have been duly authorized and, when
issued and delivered pursuant to this Agreement and the Registration Statement
will be validly issued, fully paid, non-assessable, free of preemptive rights
under the Company's certificate of incorporation and under the DGCL and no
personal liability will attach to the ownership thereof. To the best of such
counsel's knowledge, neither the filing of the Registration Statement nor the
offering or sale of the Common Stock as contemplated by this Agreement gives
rise to any registration rights or similar rights;
(iv) this Agreement has been duly and validly
authorized, executed and delivered by the Company, and assuming due execution
and delivery of this Agreement by the Underwriters, is the valid and legally
binding obligation of the Company, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws and
except (A) as the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, and (B) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to certain equitable defenses
and to the discretion of the court before which any proceedings may be brought;
(v) the certificates evidencing the Shares are in due
and proper form;
(vi) such counsel knows of no pending or threatened
legal or governmental proceedings to which the Company is a party which could
materially adversely affect the business, property, financial condition or
operations of the Company or which question the validity of the Common Stock of
the Company, this Agreement, or any action taken or to be taken by the Company
pursuant to this Agreement, and no such proceedings are known to such counsel to
be contemplated against the Company. There are no United States governmental
proceedings of which such counsel has knowledge or United States regulations
required to be described or referred to in the Registration Statement which are
not so described or referred to;
(vii) to such counsel's knowledge, the Company is not
in violation of or default under, nor will the execution and delivery of this
Agreement, or the incurrence of the obligations herein set forth and the
consummation of the transactions herein, result in a violation of, or constitute
a default under, (A) the certificate of incorporation or by-laws of the Company,
(B) any material obligations, agreements, covenants or conditions contained in
any bond, debenture, note or other evidence of indebtedness or in any contract,
indenture, mortgage, loan agreement, lease, joint venture or other agreement or
instrument of which such counsel has knowledge, to which the Company is a party
or by which it may be bound or (C) any material order, rule, regulation, writ,
injunction, or decree of any government, governmental instrumentality or court,
domestic or foreign, of which such counsel has knowledge;
(viii) the Registration Statement has become effective
under the Act and ,to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the
13
Registration Statement is in effect, and no proceedings for that purpose have
been instituted or are pending before, or threatened by, the Commission; and the
Registration Statement and the Prospectus (except for the financial statements
and other financial and statistical data contained therein, or omitted
therefrom, as to which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of the Act and the
Rules and Regulations;
(ix) such counsel is familiar with all contracts and
other documents referred to in the Registration Statement and the Prospectus and
any such amendment or supplement or filed as exhibits to the Registration
Statement and all descriptions in the Registration Statement and the Prospectus,
and any amendment or supplement thereto, of contracts and other documents are
accurate and fairly present the information required to be shown, and such
counsel does not know of any contracts or documents of a character required to
be summarized or described therein or to be filed as exhibits thereto which are
not so summarized, described or filed;
(x) no authorization, approval, consent, or license of
any governmental or regulatory authority or agency is necessary in connection
with the authorization, issuance, transfer, sale or delivery of the Shares by
the Company, in connection with the execution, delivery and performance of this
Agreement by the Company, or in connection with the taking of any action
contemplated herein, other than (A) registration under the Act and (B)
registrations or qualifications of the Shares under applicable state or foreign
securities or Blue Sky laws; and
(xi) the statements in the Registration Statement under
the captions "Business", "Management", and "Description of Common Stock" have
been reviewed by such counsel and insofar as they refer to descriptions of
agreements, statements of law, descriptions of statutes, licenses, rules or
regulations or legal conclusions as to United States law, are correct in all
material respects.
Such opinion shall also cover such matters incident to the
transactions contemplated hereby as the Underwriters or Counsel for the
Underwriters shall reasonably request. In rendering such opinion, such counsel
may rely upon certificates of any officer of the Company, or public officials as
to matters of fact, and may rely as to all matters of law other than the law of
the United States, the State of New York or the DGCL upon opinions of counsel
satisfactory to the Underwriters, in which case the opinion shall state that
such counsel has no reason to believe that the Underwriters and they are not
entitled to so rely.
In addition, such counsel shall state that it has participated
in the preparation of the Registration Statement and the Prospectus and nothing
has come to the attention of such counsel to cause such counsel to have reason
to believe that the Registration Statement or any amendment thereto, at the time
it became effective, contained any untrue statement of a material fact required
to be stated therein or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus or any supplement thereto contains any untrue statement of a material
fact or omits to state a material
14
fact necessary in order to make statements therein, in light of the
circumstances under which they were made, not misleading (except, in the case of
both the Registration Statement and any amendment thereto and the Prospectus and
any supplement thereto, for the financial statements, notes thereto and other
financial information and statistical data contained therein, as to which such
counsel need express no opinion).
(d) All corporate proceedings and other legal matters relating
to this Agreement, the Registration Statement, the Prospectus and other related
matters shall be satisfactory to or approved by Counsel to the Underwriters, and
the Underwriters shall have received from such counsel a signed opinion, dated
as of the Initial Closing Date, with respect to the validity of the issuance of
the Common Stock, the form of the Registration Statement and Prospectus (other
than the financial statements and other financial data contained therein), the
execution of this Agreement and other related matters as the Underwriters may
reasonably require. The Company shall have furnished to counsel to the
Underwriters such documents as they may reasonably request for the purpose of
enabling them to render such opinion.
(e) The Underwriters shall have received letters prior to the
Effective Date and on and as of the Initial Closing Date and each subsequent
Closing Date from Xxxxx Xxxxx CPA, independent public accountant for the
Company, substantially in the form approved by the Underwriters.
(f) At each Closing Date, (i) the representations and warranties
of the Company contained in this Agreement shall be true and correct with the
same effect as if made on and as of such Closing Date and the Company shall have
performed all of its obligations hereunder and satisfied all conditions to be
satisfied at or prior to such Closing Date, (ii) the Registration Statement and
the Prospectus and any amendments or supplements thereto shall contain all
statements which are required to be stated therein in accordance with the Act
and the Rules and Regulations, and in all material respects conform to the
requirements thereof, and neither the Registration Statement nor the Prospectus
nor any amendment or supplement thereto shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, (iii) there shall
have been, since the respective dates as of which information is given, no
material adverse change in the business, properties or condition (financial or
otherwise), results of operations, capital stock, long-term or short-term debt
or general affairs of the Company from that set forth in the Registration
Statement and the Prospectus, except changes which the Registration Statement
and Prospectus indicate might occur after the Effective Date, and the Company
shall not have incurred any material liabilities or agreement not in the
ordinary course of business other than as contemplated in the Registration
Statement and Prospectus; and (iv) except as set forth in the Prospectus, no
action, suit or proceeding at law or in equity shall be pending or threatened
against the Company which would be required to be set forth in the Registration
Statement and no proceedings shall be pending or threatened against the Company
before or by any commission, board or administrative agency in the United States
or elsewhere, wherein an unfavorable decision, ruling or finding would
materially and adversely affect the business, property, condition (financial or
otherwise), results of operations or general affairs of the
15
Company, and (v) the Underwriters shall have received, at each Closing Date, a
certificate signed by each of the President or Executive Vice President and the
principal financial or accounting officer of the Company, dated as of each
Closing Date, evidencing compliance with the provisions of this subsection (f).
(g) If any of the conditions herein provided for in this Section
shall not have been fulfilled as of the date indicated, this Agreement and all
obligations of the Underwriters under this Agreement as to any prospective
Closing may be cancelled at, or at any time prior to, such Closing by the
Underwriters notifying the Company of such cancellation in writing or by
telecopier at or prior to the Closing Date for such Closing. Any such
cancellation shall be without liability of the Underwriters to the Company.
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls the Underwriters within the
meaning of the Act against any losses, claims, damages or liabilities, joint or
several (which shall, for all purposes of this Agreement, include, but not be
limited to, all reasonable costs of defense and investigation and all attorneys'
fees), to which the Underwriters or such controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state in the Registration Statement, any Preliminary
Prospectus, Prospectus, or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company will not be liable in any such
case to the extent, but only to the extent, that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Underwriters specifically for use in the preparation of the Registration
Statement or any such amendment or supplement thereof or any such Preliminary
Prospectus or the Prospectus or any such amendment or supplement thereto. This
indemnity will be in addition to any liability which the Company may otherwise
have.
(b) The Underwriters will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
Registration Statement, and each other person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include, but not
be limited to, all costs of defense and investigation and all attorneys' fees)
to which the Company or any such director, officer, or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or
16
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by the Underwriters specifically
for use in the preparation of the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto. This
indemnity agreement will be in addition to any liability which the Underwriters
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify in writing the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise under
this Section except to the extent that such failure shall have prejudiced the
defense of such action. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, subject to the provisions herein
stated, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to so assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. The indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party if the indemnifying party
has assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party; provided that if the indemnified party is one of the
Underwriters or a person who controls the Underwriter within the meaning of the
Act, the fees and expenses of such counsel shall be at the expense of the
indemnifying party if (i) the employment of such counsel has been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or to employ counsel
reasonably satisfactory to the indemnified party or to pay all expenses relating
thereto, or (iii) the named parties to any such action (including any impleaded
parties) include both such Underwriter or such controlling person and the
indemnifying party and in the judgment of the Underwriter, it is advisable for
the Underwriter or controlling persons to be represented by separate counsel (in
which case the indemnifying party shall not have the right to assume the defense
of such action on behalf of the Underwriter or such controlling person, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for all indemnified parties, which firm shall be
designated in writing by the Underwriters). No settlement of any action against
an indemnified
17
party shall be made without the consent of the indemnified party, which shall
not be unreasonably withheld in light of all factors of importance to such
indemnified party.
8. Contribution.
------------
In order to provide for just and equitable contribution under
the Act in any case in which (i) the Underwriters make a claim for
indemnification pursuant to Section 7 hereof but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case, notwithstanding the fact
that the express provisions of Section 7 provide for indemnification in such
case, or (ii) contribution under the Act may be required on the part of the
Underwriters, then the Company and each person who controls the Company, and the
Underwriters shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees) in either such case (after
contribution from others) in such proportions that the Underwriters are
responsible for that portion of such losses, claims, damages or liabilities
represented by the percentage that the underwriting discount per share appearing
on the cover page of the Prospectus bears to the public offering price appearing
thereon, and the Company shall be responsible for the remaining portion;
provided, however, that (a) if such allocation is not permitted by applicable
law then the relative fault of the Company and the Underwriters and controlling
persons, in the aggregate, in connection with the statements or omissions which
resulted in such damages and other relevant equitable considerations shall also
be considered. The relative fault shall be determined by reference to, among
other things, whether in the case of an untrue statement of a material fact or
the omission to state a material fact, such statement or omission relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if the respective obligations of
the Company and the Underwriters to contribute pursuant to this Section 8 were
to be determined by pro rata or per capita allocation of the aggregate damages
or by any other method of allocation that does not take account of the equitable
considerations referred to in the first sentence of this Section 8. No person
guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who is not guilty of
such fraudulent misrepresentation. As used in this paragraph, the term
"Underwriter" includes any officer, director, or other person who controls the
Underwriter within the meaning of Section 15 of the Act and, the word "Company"
includes any officer, director, or person who controls the Company within the
meaning of Section 15 of the Act. If the full amount of the contribution
specified in this paragraph is not permitted by law, then the Underwriters and
each person who controls the Underwriter shall be entitled to contribution from
the Company, its officers, directors and controlling persons to the full extent
permitted by law. The foregoing contribution agreement shall in no way affect
the contribution liabilities of any persons having liability under Section 11 of
the Act other than the Company and the Underwriters. No contribution shall be
requested with regard to the settlement of any matter from any party who did not
consent to the
18
settlement; provided, however, that such consent shall not be unreasonably
withheld in light of all factors of importance to such party.
9. Termination.
-----------
(a) This Agreement, except for Sections 5(c), 7, 8, 10, 11, 12
and 13 hereof, may be terminated at any time prior to the termination of the
Offering, by the Underwriters if in the Underwriters' judgment it is
impracticable to offer for sale or to enforce contracts made by the Underwriters
for the sale of the Common Stock by reason of (i) the Company having sustained a
material loss, whether or not insured, by reason of fire, earthquake, flood,
accident or other calamity, or from any labor dispute or court or government
action, order or decree, (ii) trading in securities on the New York Stock
Exchange or the American Stock Exchange having been suspended or limited for a
period of more than four (4) consecutive business days, (iii) material
governmental restrictions having been imposed on trading in securities generally
(not in force and effect on the date hereof), (iv) a banking moratorium having
been declared by federal or New York state authorities, (v) an outbreak of major
international hostilities or other national or international calamity having
occurred, (vi) the passage by the Congress of the United States or by any state
legislative body of similar impact, of any act or measure, or the adoption of
any orders, rules or regulations by any governmental body or any authoritative
accounting institute or board, or any governmental executive, which is
reasonably believed likely by the Underwriters to have a material impact on the
business, financial condition or financial statements of the Company or the
market for the securities offered hereby, (vii) any adverse change in the
financial or securities markets in the United States in particular, the
over-the-counter markets, having occurred since the date of this Agreement,
(viii) any material adverse change having occurred, since the respective dates
of which information is given in the Registration Statement and Prospectus, in
the earnings, business prospects or general condition of the Company, financial
or otherwise, whether or not arising in the ordinary course of business, or (ix)
the Company shall not have complied with any term, condition, or provision on
their part to be performed, complied with or fulfilled (including, but not
limited to, those set forth in Sections 1, 6 and, to the extent applicable, 5
herein) within the respective times therein provided.
(b) If the Underwriters elect to terminate this Agreement as
provided in this Section 9, the Company shall be promptly notified by the
Underwriters, by telephone or telecopier, confirmed by letter.
10. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters, the
Company or any of their officers or directors or any controlling person thereof
and will survive delivery of and payment for the Shares and the termination of
this Agreement.
19
11. Notice.
------
All communications or notices required under this Agreement
shall be deemed to have been given on the date when delivered personally or by
telecopy, on the scheduled business day for delivery when sent by recognized
national overnight courier for next business day delivery or on the third
business day after deposited in the United States mail, postage prepaid by
certified or registered mail, return receipt requested), in any such case with
delivery charges prepaid, addressed as follows (unless and until any of such
parties advises the other in writing of a change in such address):
a. If to the Company:
IPORUSSIA, Inc. 00
Xxxxxxxx Xxxxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Executive Vice President
Telecopy: (000) 000-0000
With a copy to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
b. If to HCW:
X.X. Xxxxxxxxxx & Co., Inc. 000 Xxxx Xxxxxx,
00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, President
Telecopy: (000) 000-0000
With a Copy to:
Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
20
c. If to WSI:
Xxxxxxx Securities, Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, President
Telecopy: 000-000-0000
With a Copy to:
Xxxxx & Xxxxx PLLC
000 Xxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Telecopy: 000-000-0000
12. Parties in Interest.
-------------------
The Agreement herein set forth is made solely for the benefit of
the Underwriters, the Company and, to the extent expressed, any persons
controlling the Company or the Underwriters, and directors of the Company, its
officers who have signed the Registration Statement, and their respective
executors, administrators, successors, assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement.
13. Applicable Law.
--------------
This Agreement will be governed by, and construed in accordance
with, the laws of the State of New York applicable to agreements made and to be
entirely performed within New York without regard to principles of conflict of
laws that would defer to the laws of another jurisdiction.
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return this agreement, whereupon it will become a
binding agreement between the Company and the Underwriter in accordance with its
terms.
Very truly yours,
IPORUSSIA, Inc.
By:____________________________________
Xxxxxxxx X. Kuznetzov, President
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
X.X. XXXXXXXXXX & CO., INC.
By:____________________________________
Xxxxxx X. Xxxx, President
XXXXXXX SECURITIES, INC.
By:____________________________________
Xxxxx X. Xxxxxxxx, President
The undersigned hereby confirm and accept the representations and covenants made
in Section 5(k) of the foregoing Underwriting Agreement.
_______________________________________
Xxxxxxxx X. Kuznetzov
_______________________________________
Xxxxxxx X. Xxxxxx
_______________________________________
Xxxxxxx Xxxxxxxxx
