RELEASE AGREEMENT
This
Release Agreement (the
“Agreement”)
is
entered into and dated effective as of March 22, 2007 (the “Effective
Date”)
by and
among IPORUSSIA, INC., a Delaware corporation (the “Company"),
IPOR
Capital, LLC, a Delaware limited liability company (“IPOR
Capital”),
and
Xxxx Xxxxxx, on behalf of the Estate of Xxxxxxx X. Xxxxxx, deceased, as the
duly
authorized personal representative designated in the Will of Xxxxxxx X. Xxxxxx,
(“Suroff”).
Recitals
A. From
inception of the Company until his death, Xxxxxxx X. Xxxxxx was a stockholder,
executive officer and director of the Company.
B. The
Company and KI Equity Partners VI, LLC, a Delaware limited liability company
(“KI
Equity”)
have
entered into a certain securities purchase agreement dated March 8, 2007
(“Purchase
Agreement”)
under
which the Company will issue 65,789,474 shares of common stock (“Shares”)
to KI
Equity, and KI Equity will purchase the Shares from the Company (“Stock
Issuance”),
for a
purchase price of $625,000 (“Purchase
Price”).
C. All
capitalized terms set forth in this Agreement (unless otherwise defined herein)
shall have the meaning ascribed to them in the Purchase Agreement.
D. As
a
condition to the Closing of the transactions contemplated under the Purchase
Agreement, the Buyer has required Suroff to terminate any and all agreements
and
contracts with the Company and irrevocably release the Company from any and
all
debts, liabilities and obligations, with the exception of certain obligations
that are paid by the Company to Suroff by the Escrow Agent at the Closing out
of
the proceeds of the funds held in the Escrow Account as specifically set forth
on the Disbursement Schedule, a copy of which is attached hereto and
incorporated by reference.
Agreements
Now,
Therefore,
in
consideration of the above recitals, the following representations, warranties,
covenants and conditions, and other good and valuable consideration, the receipt
of which is acknowledged, the parties agree as follows:
1. Termination
of Agreements.
On the
Effective Date, the Company and Suroff, for himself and on behalf of his
affiliates, family members, related persons, successors and predecessors,
hereby: (i) mutually terminate and cancel any and all agreements and contracts
(whether oral or written) between the Company, on the one hand, and Suroff
and
his affiliates, family members, related persons, successors and predecessors,
pertaining to any matters between such parties including, without limitation,
matters in Xxxxxxx X. Xxxxxx’x capacity as an employee, consultant, officer and
director of the Company, as the case may be (“Company
Agreements”),
including, without limitation, any employment, consulting and stock option
agreements, and (ii) release each other from any further liability and
obligations under the Company Agreements. The provisions of this Section 1
shall
not apply to certain obligations that are paid by the Company to Suroff at
the
Closing out of the proceeds of the funds held in the Escrow Account as
specifically set forth on the attached Disbursement Schedule.
On
the
Effective Date, IPOR Capital and Suroff, for himself and on behalf of his
affiliates, family members, related persons, successors and predecessors,
hereby: (i) mutually terminate and cancel any and all agreements and contracts
(whether oral or written) between IPOR Capital, on the one hand, and Suroff
and
his affiliates, family members, related persons, successors and predecessors,
pertaining to any matters between such parties including, without limitation,
matters in Xxxxxxx X. Xxxxxx’x capacity as an employee, consultant, officer and
director of IPOR Capital, as the case may be (“IPOR
Capital Agreements”),
including, without limitation, any employment, consulting and stock option
agreements, and (ii) release each other from any further liability and
obligations under the IPOR Capital Agreements.
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2. Waiver
and Release.
Suroff,
for himself and on behalf of his affiliates, family members, related persons,
successors and predecessors, hereby waives, and forever releases and discharges
the Company and IPOR Capital and their respective successors and assigns, and
their respective past and present officers and directors, employees,
shareholders, members, consultants, attorneys, accountants, other professionals,
insurers, agents and all other related entities, including, but not limited
to,
assigns, predecessors, successors, controlling corporations, subsidiaries or
other affiliates (jointly, the “Related
Parties”)
from
all liabilities and obligations owed by the Company and IPOR Capital to Suroff,
and from any and all claims, demands, and causes of action of every kind and
nature, including, without limitation, those relating to or arising out of
any
federal, state or local laws, and common law, claims for advances or other
loans
to the Company or IPOR Capital, claims for unpaid salary, compensation, benefits
or expense reimbursement; provided, however, that nothing contained herein
shall
be construed to limit in any way the rights of the parties, and their successors
and assigns, to enforce the terms of this Agreement, the Escrow Agreement and
to
the payment of certain obligations that are paid by the Company to Suroff at
the
Closing out of the proceeds of the funds held in the Escrow Account as
specifically set forth on the attached Disbursement Schedule. Suroff
irrevocably
agrees to refrain from directly or indirectly asserting any claim or demand
or
commencing (or causing to be commenced) any suit, action, or proceeding of
any
kind, in any court or before any tribunal, against the Company, IPOR Capital
and
its Related Parties based upon any released claim.
3. Representations
and Warranties of the Company.
The
Company represents and warrants to Suroff that: (i) on the date of this
Agreement, the Company has all necessary authority to execute this Agreement;
(ii) there is no claim, action, suit or other proceeding pending, threatened
or
known, which, if decided adversely, would interfere with the consummation of
the
transaction contemplated hereby; (iii) no approval or consent of any
governmental authority or third party is required for the Company to enter
into
or perform this Agreement; (iv) this Agreement is enforceable in accordance
with
its terms, subject to the laws of insolvency and general principles of equity;
and (v) this Agreement has been duly authorized and adopted by the
Company.
4. Representations
and Warranties of Suroff.
Suroff
represents and warrants to the Company that: (i) on the date of this Agreement,
he has all necessary authority to execute this Agreement; (ii) there is no
claim, action, suit or other proceeding pending, threatened or known against
him, which, if decided adversely, would interfere with the consummation of
the
transaction contemplated hereby; (iii) no approval or consent of any
governmental authority or third party is required for him to enter into or
perform this Agreement; and (iv) this Agreement is enforceable against Suroff
in
accordance with its terms, subject to the laws of insolvency and general
principles of equity.
5. Delivery
and Cooperation.
If
either party requires any further documentation, the other party will promptly
respond to any reasonable requests for additional documentation.
6. Miscellaneous.
(a) Successors
and Assigns.
This
Agreement shall be binding upon the parties hereto and their respective
successors and assigns.
(b) Survival
of Covenants and Representations.
All
agreements, covenants, representations and warranties made by the parties herein
shall survive the delivery of this Agreement.
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(c) Severability.
Should
any part of this Agreement for any reason be declared invalid or unenforceable,
such decision will not affect the validity or enforceability of any remaining
portion, which remaining portion will remain in force and effect as if this
Agreement had been executed with the invalid portion thereof eliminated, and
it
is hereby declared as the intention of the parties hereto that the parties
would
have executed the remaining portion of this Agreement without including therein
any such part or portion that may, for any reason, be hereafter declared invalid
or unenforceable.
(d) Governing
Law and Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without reference to choice of law principles.
(e) Captions.
The
descriptive headings of the various Sections or parts of this Agreement are
for
convenience only and shall not affect the meaning or construction of any of
the
provisions hereof.
(f) Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties hereto concerning
the subject matter contained herein, and supersedes all prior agreements or
understanding of the parties. No provision of this Agreement may be waived
or
amended except in a writing signed by the parties. A waiver or amendment of
any
term or provision of this Agreement shall not be construed as a waiver or
amendment of any other term or provision.
(g) Counterparts.
This
Agreement may be executed by facsimile or electronic signatures and in multiple
counterparts, each of which shall be deemed an original. It shall not be
necessary that each party executes each counterpart, or that any one counterpart
be executed by more than one party so long as each party executes at least
one
counterpart.
(h) Arbitration.
All
disputes, controversies or claims (“Disputes”)
arising out of or relating to this Agreement shall in the first instance be
the
subject of a meeting between a representative of each party who has
decision-making authority with respect to the matter in question. Should the
meeting either not take place or not result in a resolution of the Dispute
within twenty (20) business days following notice of the Dispute to the other
party, then the Dispute shall be resolved in a binding arbitration proceeding
to
be held in Denver, Colorado in accordance with the international rules of the
American Arbitration Association. The arbitrators may award attorneys’ fees and
other related arbitration expenses, as well as pre- and post-judgment interest
on any award of damages, to the prevailing party or parties, in their sole
discretion. The parties agree that a panel of three (3) arbitrators shall be
required, all of whom shall be fluent in the English language, and that the
arbitration proceeding shall be conducted entirely in the English language.
Any
award of the arbitrators shall be deemed confidential information for a minimum
period of five (5) years.
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IN
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
| IPORUSSIA, INC. | ||
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| By: | /s/ Xxxxxxxx X. Xxxxxxxxx | |
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Xxxxxxxx X. Xxxxxxxxx, CEO and President |
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| By: | /s/ Xxxx X. Xxxxxx | |
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Xxxx X. Xxxxxx, Executive Vice President, Secretary and Treasurer |
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| IPOR Capital, LLC | ||
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| By: | /s/ Xxxxxxxx X. Xxxxxxxxx | |
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Xxxxxxxx X. Xxxxxxxxx, duly authorized Manager |
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| By: | /s/ Xxxx X. Xxxxxx | |
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Xxxx X. Xxxxxx, duly authorized Manager |
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| Estate of Xxxxxxx X. Xxxxxx | ||
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| By: | /s/ Xxxx Xxxxxx | |
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Xxxx Xxxxxx, as the duly authorized person designated personal representative of the estate of Xxxxxxx X. Xxxxxx in the Decedent’s Last Will. |
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