Exhibit 10.4(c)
MEMORANDUM OF UNDERSTANDING
BETWEEN
"AVANGARD" - JSB
AND
IPORUSSIA, INC.
Exhibit 10.4(c)
MEMORANDUM OF UNDERSTANDING
This Memorandum, effective this 11th day of November, 2002, by and
between IPORUSSIA, INC. ("Advisor"), a Delaware USA Corporation, and
"AVANGARD"-Joint Stock Bank - Open Joint Stock Company ("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 an Open Joint Stock Company desires to have its
securities (and/or securities of its affiliate companies) traded in the United
States, or foreign Stock Market ("Stock Market");
WHEREAS, Advisor represents that it will endeavor to assist and
introduce the Bank and/or its affiliate companies 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 and\or its affiliate companies 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
Transaction 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 (balance sheet, profit and loss account,
annual audit statement) and other business information (which shall be
coordinated by the Parties), 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 (LIST): -that had been contacted by Advisor; - that were introduced
by Advisor to Bank's Business Information, - that de facto participated in
meetings with attended by the Representatives, appropriately authorised by the
Bank. The List shall be coordinated with the Bank.
Exhibit 10.4(c)
3. COMPENSATION.
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
from 3% to 5% of all considerations paid in such Transaction. The specific
amount of Fee shall be mutually determined later in a separate Definitive
Agreement (AGREEMENT) in writing.
The terms "consummated transaction" and "consideration paid in such
Transaction" shall be stipulated in the Agreement.
4. TERM. This Memorandum shall remain in full force and effect for a period
of twenty four (24) months from the above date hereof.
In event when during the term of this Memorandum and within 12 months
after its expiration, the Bank shall receive any investments from Investor(s)
that was introduced by Advisor - from the List, coordinated with the Bank,
mentioned in paragraph 2 of the given Memorandum - the bank shall not object to
signing of Agreement that is stipulated in paragraph 3 of the given Memorandum.
5. EXPENSES. 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 supersedes all prior agreements
between the Parties with respect to its subject matter whether written or oral.
The changes and amendments shall be valid only when they are signed in writing
by both Parties. 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.
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 Trade and industrial Chamber of the
Russian Federation in accordance with the Chamber of the Russian Federation in
accordance with the Chamber
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Rules of Arbitration in effect at the time of the arbitration. The arbitration
proceedings shall be conducted in Moscow, and in the Russian language. The
arbitration award 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 on 8 printed pages. 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 govern by translation that shall be made by
agreed by the Parties translator that has appropriate diploma.
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 (the list of send and received by
facsimile transmission and e-mail information shall be coordinated by the
Parties), (iii) sent by recognized international overnight courier service, or
(iv) sent by registered mail, return receipt requested, postage prepaid.
If to Bank:
K.Minovalov
President
"AVANGARD"-JSB
00/0 Xxxxxxxxxxxxxx Xxx
Xxxxxx, 000000
Russian Federation
Tel: (000) 000-0000
Fax: (000) 000-00-00
E-Mail: xxxx@xxxxxxxx.xx
If to Advisor:
Xxxxxxxx X. Xxxxxxxxx
President & C.E.O.
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
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In Witness Whereof, Bank and the Advisor have duly signed and executed
this Memorandum effective as of the date first written above.
IPORUSSIA, INC. Open Joint Stock Company
"AVANGARD"-JSB
By: /s/ Xxxxxxxx X. Xxxxxxxxx By: /s/ K. Minovalov
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Xxxxxxxx X. Xxxxxxxxx K. Minovalov
President & C.E.O. President
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