Exhibit 10.4(b)
MEMORANDUM OF UNDERSTANDING
BETWEEN
RUSSIAN DEPOSIT BANK
AND
IPORUSSIA, INC.
UNDERSTANDING
This Memorandum, effective this 31st day of ___ October, 2002, by and
between IPORUSSIA, INC. ("Advisor"), a Delaware USA Corporation, and Russian
Deposit Bank ("Bank"), a Russian registered bank Company. The Bank and Advisor
are referred herein together as the "Parties", and each separately as a "Party".
WHEREAS, the Bank is a Limited Partnership Company and desires to have its
securities traded in the United States, or foreign Stock Market ("Stock
Market");
WHEREAS, Advisor represents that it will endeavor to assist and introduce
the Bank to one or more underwriting companies, stock brokerage companies, a
potential strategic alliance partner in the form of a foreign bank, or bank
group, and / or an investor(s) ("Investors") who may be interested in engaging
in a financing arrangement, or in a business combination with the Bank for a
substantial Private Placement investment, or an Initial Public Offering /
Underwriting (IPO) of its securities on a foreign Stock Market known as the
"Transaction". Such an agreement shall be stipulated in writing by a separate
Definitive Agreement between Bank and Investor(s); and
WHEREAS, the Bank desires to retain the services of Advisor to provide
business consulting, assistance, and guidance as well as introduction services
to such Investor(s) entities.
IT IS HEREBY MUTUALLY AGREED THAT:
1. APPOINTMENT. The Bank retains Advisor to find Investor(s) groups
interested in effecting a strategic alliance / financing on terms acceptable to
the Bank and the Investors. Advisor will endeavor to introduce the Bank to such
Investor(s) entities. Advisor is an independent contractor and is not an agent
of the Bank and it shall have no authority to bind the Bank in any manner.
2. BUSINESS INFORMATION. The Bank will furnish Advisor from time to time
with current financial statements and business information, in the Russian
Language and appropriate sections translated into English if requested
("Business Information"). Advisor is authorized to send copies of the Business
Information to potential Investors. The Bank hereby represents and warrants that
all the Business Information provided Advisor pertaining to the Bank shall be
true and correct. The volume of information furnished shall be reasonable and
sufficient for the consummation of Transaction. Advisor shall provide the Bank,
from time to time, with a list of Investors that have been contacted and
introduced to Bank's Business Information.
3. COMPENSATION.
(A) In the event of a consummated Transaction, the Bank shall pay a
cash fee ("Fee") to Advisor upon closing ("Closing") of the Transaction at the
amount of 5% of all considerations paid in such Transaction.
"consideration paid in such Transaction" for purposes of this Memorandum shall
mean the value of (1) all consideration, including proceeds from the sale of
securities of the Bank and its Stockholders in an Underwriting, Investments paid
to the Bank and the Stockholders of the Bank
Exhibit 10.4(b)
in connection with a Transaction, including cash, securities or other
consideration exchanged or paid at Closing; assumption of debt; and any deferred
payments including without limitation notes, contingent payments and (2) the
aggregate amount of any investment made by the Investor in a joint venture with
the Bank. Payment of the applicable Fee set forth above will be made at the
Closing of the related Transaction. The Fee shall be payable in cash and any
consideration other than cash which is paid in the consummated Transaction shall
be valued at its fair market value.
(B) The Fee to Advisor shall be considered separate and apart from any
underwriters compensation or brokerage fee or commission on a Transaction. The
Bank shall be responsible for all of their legal, accounting and other expenses
associated with a Transaction. The compensation Fee to Advisor shall include all
Advisor's expenses associated with Transaction, and/or with performance of
Advisor's obligations for the said Memorandum. Bank bears no responsibility for
Advisor's expenses associated with Transaction, and/or with performance of
Advisor's obligations for the said Memorandum.
(C) In the event Advisor shall find an Investor that provides for
financing of the costs associated with the Bank's Initial Public Offering (IPO)
on terms agreeable to the Bank, the per cent value stated in Paragraph 3(A)
might be increased. Upon coordinated resolution to increase Advisor's Fee, the
Parties shall conclude a separate Exhibit to the given Memorandum.
(D) Should impossibility of performance of the given Memorandum be a
result of circumstances that neither Party is responsible for, Bank shall not
reimburse Advisor for expenses incurred.
4. TERM. This Memorandum shall remain in full force and effect for a period
of twenty four (24) months from the above date hereof; provided, however, that
Advisor shall be entitled to receive the full Fee set forth in Paragraph 3
hereof in the event an introduction was made by Advisor to an Investor during
the term of this Memorandum and a Transaction or other business arrangement is
consummated with such Investor within two years from the expiration of this
Memorandum.
5. EXPENSES. Neither Party shall incur any expenses on behalf of the other
Party without prior approval in writing. Advisor agrees to use its best efforts
to introduce the Bank to one or more possible Investors interested in financing
the costs associated with the support of and/or placement of Bank's securities
in the Stock Market on terms agreeable to the Bank.
6. ENTIRE MEMORANDUM. This Memorandum contains the entire understanding of
the Parties hereto with respect to the transactions contemplated and may only be
amended or modified if reduced to writing and signed by both Parties, and
supersedes all prior Memorandums between the Parties with respect to its subject
matter whether written or oral. Both Parties represent and warrant to each other
that the Parties signing this Memorandum are officers and have full power and
authority to enter into this Memorandum and carry out the terms and conditions
contemplated hereby.
Exhibit 10.4(b)
7. CAPTIONS, HEADINGS, OR TITLES. All captions, headings or titles in the
sections of the Memorandum are inserted for convenience of reference only and
shall not constitute a part of this Memorandum or a limitation of scope of the
particular sections to which they apply.
8. COUNTERPARTS. This Memorandum may be signed in counterparts and shall
become effective as if executed in a single, complete document as of the date
hereof upon its execution by both parties.
9. GOVERNING LAW. This Memorandum and any modifications, amendments and
additions thereto shall be governed in accordance with the laws of the Russian
Federation.
10. CONFIDENTIALITY. The Parties agree that any information disclosed to
each other marked "Confidential" shall not be disclosed to any Investor or third
party unless prior written permission has been obtained.
11. DISPUTES AND ARBITRATION. Any controversy or claim arising out of or
relating to this Memorandum shall be settled by binding arbitration by the
International Court of Arbitration of the International Chamber of Commerce (the
"ICC") in accordance with the ICC Rules of Arbitration in effect at the time of
the arbitration. The arbitration proceedings shall be conducted in Geneva,
Switzerland and in the English language. There shall be three (3) arbitrators,
one of whom shall be selected by the Party seeking to initiate the arbitration,
one by the other Party and the third by the two arbitrators so selected. The
arbitration award shall be given in writing and shall be final and binding on
the Parties with respect to the subject matter in controversy. The Parties shall
keep confidential the arbitration proceedings and terms of any arbitration
award, except as may otherwise be required by law. Each Party shall bear its own
legal fees and other costs related to the arbitration, except that the
arbitrators shall determine who shall bear the costs of the arbitrators. The
arbitrators may determine arbitrability but may not award punitive damages or
limit, expand or otherwise modify the terms of this Memorandum.
12. This Memorandum is made in English and Russian. The English and Russian
forms of this Memorandum shall be equally binding. Should any difficulties or
ambiguous interpretation of terms and conditions of this Memorandum arise, the
Parties shall first attempt to resolve this matter between them. If not
successful, the controversy shall be subject to Paragraph 11.
13. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving Party's
address set forth below or to such other address as a Party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy or facsimile transmission and e-mail, (iii) sent by recognized
international overnight courier service, or (iv) sent by registered mail, return
receipt requested, postage prepaid.
Exhibit 10.4(b)
If to Bank:
President
"RDB" Leus D.
Tel: (000) 000-0000
Fax: . (000) 000-0000
E-Mail: xxx.xxxxxx.xx
If to Advisor:
Xxxxxxxx Xxxxxxxxx
President
IPORUSSIA, INC.
00 Xxxxxxxx Xxx.
Xxxxxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Tel. (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxx@xxxxxxxxx.xxx
IN WITNESS WHEREOF, Bank and the Advisor have duly signed and executed this
Memorandum effective as of the date first written above.
IPORUSSIA, INC. Russian Deposit Bank
By:/s/ Xxxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx Xxxx
--------------------------- ----------------------------
Xxxxxxxx X. Xxxxxxxxx Xxxxxx Xxxx
President & C.E.O. President
