INDEMNITY AGREEMENT
INDEMNITY
AGREEMENT
This
Indemnity Agreement (the
“Agreement”)
is
entered into and dated effective as of this 22nd day of March, 2007 (the
“Effective
Date”)
by and
among IPORUSSIA, INC., a Delaware corporation (the “Company"),
IPOR
Capital, LLC, a Delaware limited liability company (“IPOR
Capital”),
Xxxxxxxx X. Xxxxxxxxx, an adult resident of Moscow, Russian Federation
(“Kuznetsov”),
Xxxx
X. Xxxxxx, an adult resident of the State of New York, U.S.A., (“Xxxx
X. Xxxxxx”),
and
Xxxxxxx Xxxxxxxxx, an adult resident of the State of New York, U.S.A.
(“Xxxxxxxxx”).
Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxxxxxx are referred to herein individually
as
the “Principal”
and
collectively as the “Principals.”
Recitals
X. Xxxxxxxxx
and Xxxxxxxxx have been the executive officers and directors of the Company
since the Company’s inception and have been directly involved and participated
in the Company’s business, operations and finances since the Company’s
inception. Xxxx X. Xxxxxx has recently become an executive officer 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 (“Closing”),
the
Buyer has required that an indemnification be provided by the Principals
under
which the Company will be held harmless from any liabilities or obligations
of
the Company arising out of or related to the period prior to the Closing.
E. The
Company is willing to provide good and valuable consideration to the Principals
for providing such indemnification to the Company as set forth
herein.
F. The
Principals are willing to provide such indemnification pursuant to the terms
and
conditions hereof.
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. Indemnification.
(a) The
Principals hereby jointly and severally indemnify and hold harmless, and
agree
to indemnify and hold harmless, the Company (from and after the Closing)
against
(i) any and all liabilities, obligations, losses, damages, claims, actions,
Liens and deficiencies which exist, or which may be imposed on, incurred
by or
asserted against the Company (“Asserted
Claims”)
based
upon, resulting from or arising out of: (a) the Liabilities (as defined herein)
of the Company related to the period prior to the Closing, (b) any breach
or
inaccuracy of any representation or warranty by the Company under the Purchase
Agreement, (c) any breach of any agreement or covenant made by the Company
in or
pursuant to the Purchase Agreement requiring performance by the Company prior
to
Closing, (d) any breach of any agreement or covenant made by the Principals
in
or pursuant to this Agreement, and (e) any Company Closing Obligations (as
defined in the Purchase Agreement) which are not paid from the Purchase Price
deposited in the Escrow Account for the disbursement and payment of the Company
Closing Obligations, and (ii) any cost or expense (including reasonable
attorneys' fees and court costs) incurred by the Company in connection with
the
foregoing (including, without limitation, any cost or expense incurred by
the
Company in enforcing its rights pursuant to this Agreement) (collectively,
the
“Damages”).
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(b) Each
of
the Principals acknowledges and agrees that it has received a copy of the
Purchase Agreement, has carefully reviewed and fully understands the terms
and
conditions of the Purchase Agreement and fully understands that each of the
Principals may be held liable for breaches of representations, warranties
and
agreements of the Company contained in the Purchase Agreement.
(c) For
purposes of this Agreement, the term “Liabilities”
shall
mean all debts, liabilities and obligations, direct, indirect, absolute or
contingent of the Company, whether accrued, vested or otherwise, whether
known
or unknown and whether or not reflected, or required in accordance with U.S.
GAAP to be reflected, in the Company’s balance sheet including, without
limitation, accounts and trade payables, accrued expenses, payroll liabilities,
vacation and sick pay obligations, deferred revenue, customer deposits, loans
and promissory notes, vendor and customer claims, obligations under any
contracts, agreement, instruments, licenses and leases (including, without
limitation, the lease of office and other facilities wherever located,
contracts, letters of intent, memorandum of understandings, employment
agreements, protocols, broker-dealer agreements, financial advisory agreements,
customer or client agreements, bank notes, bank guaranties, consulting
agreements, business contracts, distribution, license, joint venture agreement,
and other agreements to which the Company is or was a party), compensation
claims and employee benefits, taxes of any kind or nature, filings made with
any
regulatory agencies including the SEC and the NASD, fines and penalties,
obligations, damages or expenses (including fines and penalties) arising
as a
result of the Company’s failure to comply with any laws, rules or regulations
applicable to the Company or its respective businesses (including, without
limitation, any and all laws, rules and regulations under and with respect
to
Securities Act of 1933, as amended, the Securities Exchange Act of 1934,
as
amended, and the rules and regulations of the NASD governing broker-dealers),
any claims by past or present stockholders, debt holders, warrant holders,
or
option holders on account of actions or events occurring prior to the Closing,
employment matters and benefits (including any and all liabilities arising
out
of or with respect to the termination of the Company’s employees whether for
severance, health care insurance continuation or any other matter), any and
all
obligations with respect to any stock option or incentive plans of the Company,
any and all options and shares issued under such plans, and any registration
statements filed on Form S-8 with respect to such plans, any and all Taxes
(as
defined in the Purchase Agreement) arising out of or related to the period
prior
to Closing, debt obligations of any kind, claims made by any past or current
holders of the Company’s securities, customer and product warranty claims,
actions and proceedings, pending or threatened, and any liabilities, obligations
or claims, whether or not presently asserted, arising out of, relating to
or
connection with the assets or the businesses heretofore conducted by the
Company
or any of its respective affiliates and subsidiaries at any time prior to
the
Closing. Notwithstanding any other provision of this Agreement, the Liabilities
shall not include any of the obligations of the Company under this Agreement
or
the Registration Rights Agreement.
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(d) If
at any
time the Company determines to assert a right to indemnification under this
Section, the Company shall give to the Principals or whoever indemnification
is
being asserted against, prompt written notice describing the matter for which
indemnification is sought in reasonable detail so as to allow the party
receiving said notice full understanding of the Asserted Claims received
by the
Company and the extent of the Company’s access to books and records that may be
reasonably necessary or useful in the defense against any Asserted Claims.
In
the event that a demand or claim for indemnification is made hereunder with
respect to a matter the amount or extent of which is not yet known or certain,
the notice of demand for indemnification shall so state, and, where practicable,
shall include an estimate of the amount of the matter. The failure of the
Company to give notice of any matter to the Principals shall not relieve
the
Principals of any liability which the Principals may have to the Company,
except
to the extent such failure to notify shall have resulted or caused prejudice
to
the Principals or results in a material adverse impact on the ability of
the
Principals to respond to any Asserted Claims, conduct discovery, assert any
affirmative defenses against said Claims, or prevent the Principals from
obtaining a convenient and commercially reasonable forum and venue to
adjudicate, mediate, or arbitrate any said Asserted Claims. Within 10 days
after
receipt of the notice referred to above, the Principals shall (i) acknowledge
in
writing its responsibility for all or part of such matter, and shall pay
or
otherwise satisfy the portion of such matter as to which responsibility is
acknowledged or take such other action as is reasonably satisfactory to the
Company to resolve any such matter that involves anyone not a party hereto,
or
(ii) give written notice to the Company of its intention to dispute or contest
all or part of such responsibility. Upon delivery of such notice of intention
to
contest, the parties shall negotiate in good faith to resolve as promptly
as
possible any dispute as to responsibility for, or the amount of, any such
matter. If such dispute is not resolved within 10 days, such dispute shall
be
submitted to arbitration as provided under Section 7.h. hereof.
(e) The
Principals shall have the authority and the right to select legal counsel
and to
satisfy and/or settle any indemnity claims, without notice or cost to the
Company, and the Company shall cooperate with the Principals as reasonably
requested to dispute and defend against any indemnification claim as determined
by the Principals, at the Principals’ expense, and the Company shall promptly,
after written request of the Principals, supply any necessary confirmation
or
available documentation as related to the defense of any indemnification
claim
involving a third party; provided, however, that any settlement or satisfaction
of any indemnity claim by the Principals shall include a release of the Company,
which shall be reasonably acceptable to the Company.
(f) The
Principals hereby agree that $50,000 of the Consideration (as defined herein),
in the aggregate, to be paid to them under this Agreement, shall be held
in
escrow by Escrow Agent to satisfy any indemnification claims asserted against
the Principals under this Agreement (“Indemnity
Escrow”).
Notwithstanding anything contained in this Agreement to the contrary, the
establishment of the Indemnity Escrow, and the use of it to satisfy
indemnification claims under this Agreement, shall not in any way limit or
restrict the indemnification rights or other rights or remedies of the Company
under this Agreement or otherwise. On the 90th
day
following the Closing, any remaining monies in the Indemnity Escrow (the
“Indemnity Escrow Residuary”) shall be promptly disbursed by the Escrow Agent to
the Principals, provided, however, no monies shall be disbursed to the
Principals unless and until all indemnification claims for which notice had
previously been provided in accordance with this Section 7.2 are resolved.
Any
such disbursement of funds from the Indemnity Escrow Residuary shall be paid
to
the Principals pursuant to their joint written instruction to the Escrow
Agent
upon the Escrow Agent’s request therefore at expiration of the corresponding,
applicable period of escrow hereunder.
(g) The
indemnification provided by the Principals under this Agreement shall not
in the
aggregate exceed $625,000, which is the Purchase Price under the Purchase
Agreement, and no demand or claim for indemnification under this Agreement
may
be made after 11:59 p.m., Denver time, on the date which is two (2) years
following the Closing Date (the “Claim
Period”).
The
parties hereto acknowledge and agree that the limitations on amount and duration
of the indemnification set forth in the preceding sentence shall not apply
to
any claim for indemnification of Taxes.
2. Consideration.
In
consideration of the indemnification provided by the Principals under this
Agreement, the Company shall: (a) pay to the Principals a sum of Fifty Thousand
Dollars ($50,000 ) in the aggregate, and (b) assign to the Principals at
Closing
100% of the equity interests of IPOR Capital, a wholly-owned subsidiary of
the
Company (collectively, the “Consideration”).
At
the Closing, the Consideration shall be allocated among the Principals in
accordance with their mutual agreement and written instructions to the Company
and to the Escrow Agent, and such allocated amounts shall be set forth on
the
Disbursement Schedule. Each Principal acknowledges and agrees that the portion
of the Consideration payable to him hereunder is fair and reasonable and
fairly
compensates the Principal for the indemnification obligation each is taking
under this Agreement. In addition to the foregoing, each Principal also
acknowledges and agrees that certain payments being made to them under the
Disbursement Schedule, other than the payment of the Consideration hereunder,
if
any (“Other Payments”) constitute additional consideration for their agreement
to the terms and conditions of this Agreement insofar as the Other Payments
would not have been capable of being made by the Company based on its financial
condition without the payment by KI Equity of the Purchase Price under the
transactions contemplated under the Purchase Agreement, the closing of which
requires the execution of this Agreement as a condition precedent.
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3. Covenants
by the Principals.
(a) The
Principals agree to pay any
third
party professional costs associated with the preparation and/or filing of
the
2006 Audit and the 2006 Tax Returns in excess of $5,000 (“Principals’
Compliance Costs”)
but
only to the extent that the Principals’ Compliance Costs have not been paid at
Closing from the Escrow Account. The Principals also agree to pay any Company
Closing Obligations not paid from the Escrow Account at the Closing or not
a sum
certain at the Closing, any Taxes under Section 3(c) hereof and the Dissolution
Costs under Section 3(c) hereof (collectively,
“Principals’
Closing Obligations”).
The
Principals’ Compliance Costs and Principals’ Closing Obligations (collectively,
the “Principals’ Obligations”) shall be paid on behalf of the Principals by the
Escrow Agent from the Additional Closing Escrow established under this Section,
but to the extent the Additional Closing Escrow is insufficient to pay the
Principals’ Obligations in full, each Principal shall be jointly
and severally liable and shall promptly pay any such deficiency. The
Buyer
and the Principals shall in good
faith
determine, at or prior to Closing, the portion of the proceeds of the Purchase
Price that shall be held in the Escrow Account for the payment and satisfaction
of such Principals’ Obligations either based on a sum certain if such
obligations are known at the Closing or a good faith estimates thereof if
such
obligations are not known (“Additional
Closing Escrow”),
which
such sums certain and estimates being set forth in the Disbursement
Schedule.
The
Additional Closing Escrow shall be in addition to the Indemnity Escrow set
forth
in Section 1 hereof.
(b) Following
the Closing, the Principals agree to cooperate with the Company as commercially
reasonable under the then existing circumstances, and provide any information
and documentation reasonably requested by the Company or its advisors, to
allow
the Company to continue to file its periodic reports with the SEC (or any
amendments thereto) in a timely manner, to allow the Company to comply with
the
reporting requirements of the Exchange Act of 1934, as amended, to allow
the
Company to provide market makers with the information to obtain or maintain
a
quotation on the Over-the-Counter Bulletin Board, and to allow the Company
to
prepare and file any tax returns.
(c) The
Principals agree to pay all Taxes imposed on the Company related to the period
prior to the Closing including, without limitation: (i) all Taxes imposed
by the
State of New York through and including the Closing date to permit the prompt
surrender of the Company’s certificate of authority to do business in New York
following the Closing, and (ii) all Taxes imposed by any and all governmental
entities in Russia. The Principals also agree to pay all costs, expenses
and
Taxes in connection with the Dissolution (as defined in the Purchase Agreement)
(“Dissolution
Costs”).
Notwithstanding
the immediately preceding two sentences, the Principals shall have not
obligation to make any payments for the items set forth in this Section 3(c)
to
the extent that such items have
been
paid at the Closing from the Escrow Account.
4
4. Representations
and Warranties of the Company.
The
Company represents and warrants to the Principals 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 against the
Company 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.
The
Company further agrees that Principals, as representatives of the stockholders
owning the Current Outstanding Stock (as defined in the Purchase Agreement),
shall be entitled to seek injunctive relief for any breach of the Company’s
agreements and covenants set forth in Section 5.12 of the Purchase Agreement.
5. Representations
and Warranties of the Principals.
The
Principals represent and warrant to Company that: (i) on the date of this
Agreement, each of them has all necessary authority to execute this Agreement;
(ii) there is no claim, action, suit or other proceeding pending, threatened
or
known against them, 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
Principals to enter into or perform this Agreement; and (iv) this Agreement
is
enforceable against the Principals in accordance with its terms, subject
to the
laws of insolvency and general principles of equity.
6. Delivery
and Cooperation.
If
either party requires any further documentation, the other party will promptly
respond to any reasonable requests for additional documentation.
7. 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, subject to the limitations
set
forth in this Agreement.
(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 both 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.
5
(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 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 years.
(i)
Notices. All
notices and other communications hereunder shall be in writing and shall
be
deemed given if delivered personally or by commercial delivery service, or
sent
via telecopy (receipt confirmed) to the parties at the following addresses
or
telecopy numbers (or at such other address or telecopy numbers for a party
as
shall be specified by like notice):
| (1) |
if
to the Company (prior to Closing), to:
IPORUSSIA,
INC.
Attention:
Xxxx X. Xxxxxx
12
Xxxxxxx Avenue
Jericho,
NY 00000
(000)
000-0000 fax
with
a copy to:
Xxxxxx
Xxxxxxx Xxxxxxx, Esq.
Xxxxxx
Xxxxxxx Xxxxxxx, P.A.
517
SW 1st
Avenue
Fort
Lauderdale, FL 00000
(000)
000-0000 fax
|
| (2) |
if
to the Company (after Closing), to:
IPORUSSIA,
INC .
Attention:
Xxxxx Xxxxxxx, Director
936A
Beachland Boulevard, Suite 13
Vero
Beach, Florida 00000
(000)
000-0000 fax
|
6
(3) if
to the
Principals, to the address and fax number set forth next to their respective
names on the signature page.
[Remainder
of this page intentionally left blank.]
7
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
| IPORUSSIA, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxxx X. Xxxxxxxxx | |
|
Xxxxxxxx X. Xxxxxxxxx, CEO and President |
||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxx | |
|
Xxxx X. Xxxxxx, Executive Vice President, Secretary and Treasurer |
||
| PRINCIPALS: | |
|
/s/
Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx
X. Xxxxxxxxx, Individually
_____________________________________
_____________________________________
_____________________________________
____________________________________
fax
SSN:
____________________________________
|
|
|
/s/
Xxxx X. Xxxxxx
Xxxx
X. Xxxxxx, Individually
_____________________________________
_____________________________________
_____________________________________
____________________________________
fax
SSN:
____________________________________
|
|
|
/s/
Xxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx, Individually
_____________________________________
_____________________________________
_____________________________________
____________________________________
fax
SSN:
____________________________________
|
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