Exhibit 10.45
THIS AGREEMENT (the
“Agreement”) is made and entered into this 16th day of November,
2004, by and between ELITE FINANCIAL COMMUNICATIONS GROUP, LLC, located at 000
Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxx 00000, (hereinafter referred to as
“ELITE”) and XFONE, INC., located at c/o Swiftnet Ltd. Britannia House,
000 Xxxx Xxxx, Xxxxxx, Xxxxxx Xxxxxxx X00 0XX, (hereinafter referred to as the
“Company”).
WITNESSETH:
For consideration of the mutual
promises and covenants contained herein, the parties hereto agree as follows:
1) EMPLOYMENT
Company hereby hires and employs
ELITE as an independent contractor, and ELITE does hereby accept its position as an
independent contractor to the Company upon the terms and conditions hereinafter set forth.
2) TERM
The term of this Agreement shall be
for twelve (12) months. However, the Company shall retain the right to terminate this
Agreement at any time and for any reason, at its sole discretion.
| 3) |
DUTIES AND OBLIGATIONS OF ELITE |
| a) |
ELITE will review and analyze various aspects of the Company’s goals and
make recommendations on feasibility and achievement of desired goals. |
| b) |
Through its Tele-Market Relations Group, ELITE will provide exposure to its
network of firms and brokers that may be interested in participating with the
Company, schedule and conduct the necessary due diligence, and obtain the
required approvals necessary for those firms to participate. ELITE will also
interview and make determinations on any brokerage or institutional firms
referred by the Company with regard to their participation. |
| c) |
At the Company’s request, ELITE will be available to manage any calls from
firms, individual investors/shareholders and brokers inquiring about the
Company. In addition, ELITE will assist the Company in preparing its quarterly
communications relative to its financial results and coordinate corresponding
news announcements, conference calls and simulcasts on the Internet in
accordance with Regulation FD. |
| d) |
ELITE will feature the Company on the Internet via ELITE’s home web site
(xxx.xxxx.xxx) within the Elite Financial Forum which will
feature comprehensive information relative to the Company’s fundamental and
technical strengths, as well as industry and corporate overviews; management
biographies; stock trading history; market making activity; conference
call/webcast archives; and other information meaningful to the investment
community. The Forum will be updated routinely and provide for site
visitors to request ongoing information about the Company as it is released. |
| e) |
ELITE shall write, produce and/or assist the Company in preparing and releasing
all news announcements. The Company shall be solely responsible for paying all
fees associated with the actual release(s) through BusinessWire, PR Newswire, or
any other comparable news dissemination source. ELITE will create, build and
continually enhance a database of all brokers, investors, analysts and media
contacts who have expressed an interest in receiving ongoing information on the
Company and manage the ongoing distribution of news announcements and/or other
Company approved communications. |
| f) |
ELITE shall serve as the Company’s publicist and will strive to obtain
coverage in both national and industry publications, in financial newsletters,
on financial radio and television programming and via traditional press mediums.
Specifically, ELITE will facilitate an ongoing outreach program to an
intelligently targeted universe of media professionals. Further, ELITE will
track published articles and provide monthly clippings of those
articles/mentions featuring the Company. |
| g) |
At the Company’s request, strive to obtain the Company analyst coverage
and/or investment banking sponsorship. |
| h) |
ELITE shall arrange for a series of due diligence meetings with select
broker/dealers, institutional investors and analysts at predetermined dates
throughout the campaign term, while remaining compliant with the rules and
regulations associated with Regulation FD. |
| i) |
ELITE shall develop customized, high-quality, high-impact and fully integrated
financial communications programs and platforms, and leverage our strategic
resources to enhance general product/service marketing programs initiated by the
Company. |
| j) |
In association with the Company’s management team, ELITE will coordinate a
nationwide meeting schedule (road show) providing for one-on-one meetings with
appropriate institutional investors. |
| k) |
ALL OF THE FOREGOING ELITE-PREPARED DOCUMENTATION CONCERNING THE COMPANY,
INCLUDING, BUT NOT LIMITED TO, INFORMATIONAL WRITE-UPS, NEWS ANNOUNCEMENTS,
SHAREHOLDER LETTERS, ET AL, SHALL BE PREPARED BY ELITE USING MATERIALS SUPPLIED
TO IT BY THE COMPANY AND SHALL BE APPROVED BY THE COMPANY PRIOR TO DISSEMINATION
BY ELITE. |
| a) |
Until such time as the Company becomes listed on a major U.S. exchange, be it
Nasdaq or the American Stock Exchange, Elite will be entitled to receive a
monthly retainer fee of $7,500, payable in cash with the first payment due upon
execution of this Agreement and subsequent payments due every month thereafter.
Upon the Company becoming listed on a major U.S. exchange, be it Nasdaq or the
American Stock Exchange, the monthly retainer fee shall increase to $10,000,
payable in cash. |
| b) |
ELITE would also be entitled to receive a warrant to purchase up to 125,000
common shares of the Company’s common stock, exercisable as follows:
i) 62,500 shares exercisable at $5.10 per share; and
ii) 62,500 shares exercisable
at $6.80 per share. |
|
The
warrants shall vest as follows:
— 5,000 shares per month for the
first six months of the Agreement;
— 10,000 shares per month for months seven through
eleven of the Agreement; and
— 45,000 shares on the first day of the 12th
month of representation under this Agreement.
|
| c) |
The Company shall agree to issue ELITE piggyback registration rights for the
common shares underlying the warrants listed above, whereby these shares will be
registered for resale by ELITE on the first applicable new Registration
Statement filed by the Company with the U.S. Securities & Exchange
Commission; said underlying common shares shall be held by the Company until
such time as ELITE elects to exercise its warrants to purchase the common
shares. The term of the warrants shall expire at the later of: (1) 36 months
from the day of grant; (2) 6 months after the underlying shares are effective.
In the event the Company elects early termination of this Agreement, pursuant to
Section 2 herein, then any warrants that have not yet reached their vesting date
will be deemed null and void. |
5) ELITE’S EXPENSES
AND COSTS
Company shall pay all reasonable
costs and expenses incurred by ELITE, its directors, officers, employees and agents, in
carrying out its duties and obligations pursuant to the provisions of this Agreement,
excluding ELITE’s general and administrative expenses and costs, but including and
not limited to the following costs and expenses; provided all costs and expense items
in excess of $1.00 (One Dollar) must be approved by the Company in writing prior to
ELITE’s incurrence of the same:
| a) |
Travel expenses, including but not limited to transportation, lodging and food
expenses, when such travel is conducted on behalf of the Company. |
| b) |
Seminars, expositions, money and investment conferences. |
| c) |
Radio and television time and print media advertising costs, when/if applicable. |
| d) |
Subcontract fees and costs incurred in preparation of independent third party
research reports, when/if applicable. |
| e) |
Cost of on-site due diligence meetings, if applicable. |
| f) |
Printing and publication costs of brochures and marketing materials, which are
not supplied by the Company. |
| g) |
Corporate web site development costs. |
| h) |
Printing and publication costs of Company annual reports, quarterly reports,
and/or other shareholder communication collateral material, which is not
supplied by the Company. |
| 6) |
COMPANY’S DUTIES AND OBLIGATIONS |
Company shall have the following
duties and obligations under this Agreement:
| a) |
Cooperate fully and timely with ELITE so as to enable ELITE to perform its
obligations under this Agreement. |
| b) |
Within ten (10) days of the date of execution of this Agreement to deliver to
ELITE a complete due diligence package on the Company, including all the
Company’s filings with the U.S. Securities and Exchange Commission within
the last twelve months; the last six (6) months of press announcements on the
Company; and all other relevant materials with respect to such filings,
including but not limited to, corporate reports, brochures, and the like, and a
list of analysts and or fund managers, who have been following the Company. |
| c) |
The Company will act diligently and promptly in reviewing materials submitted to
it from time to time by ELITE and inform ELITE of any inaccuracies contained
therein prior to the dissemination of such materials. |
| d) |
Promptly give written notice to ELITE of any change in the Company’s
financial condition or in the nature of its business or operations which had or
might have an adverse material effect on its operations, assets, properties or
prospects of its business. |
| e) |
Promptly pay all Company pre-approved costs and expenses incurred by ELITE under
the provisions of this Agreement when presented with invoices for the same by
ELITE. |
| f) |
Give full disclosure of all material facts concerning the Company to ELITE and
update such information on a timely basis. |
| g) |
Promptly pay the compensation due ELITE under the provisions of this Agreement,
and as defined in Section 4 and Sections 5 and 6 (if and when applicable)
herein. |
| a) |
Except as may be required by law, the Company, its officers, directors,
employees, agents and affiliates shall not disclose the contents and provisions
of this Agreement to any individual or entity without ELITE’s expressed
written consent subject to disclosing same further to Company counsel,
accountants and other persons performing investment banking, financial, or
related functions for the Company. |
| b) |
Except as may be required by law, ELITE, its officers, directors, employees,
agents and affiliates shall not furnish, disclose, deliver or otherwise make
available or accessible to any third party, directly or indirectly, any
Confidential Information of the Company without the prior written consent of the
Company. |
In the event of any default in the
payment of ELITE’s compensation to be paid to it pursuant to this Agreement, or any
other charges or expenses on the Company’s part to be paid or met, or any part or
installment thereof, at the time and in the manner herein prescribed for the payment
thereof and as when the same becomes due and payable, and such default shall continue for
five (5) days after ELITE’s written notice thereof is received by Company; in the
event of any default in the performance of any of the other covenants, conditions,
restrictions, agreements, or other provisions herein contained on the part of the Company
to be performed, kept, complied with or abided by, and such default shall continue for
five (5) days after ELITE has given Company written notice thereof, or if a petition in
bankruptcy is filed by the Company, or if the Company is adjudicated bankrupt, or if the
Company shall compromise all its debts or assign over all its assets for the payment
thereof, of if a receiver shall be appointed for the Company’s property, then upon
the happening of any of such events, ELITE shall have the right, at its option, forthwith
or thereafter to accelerate all compensation, costs and expenses due or coming due
hereunder and to recover the same from the Company by suit or otherwise and further, to
terminate this Agreement. The Company covenants and agrees to pay all reasonable attorney
fees, paralegal fees, costs and expenses due of ELITE, including court costs, (including
such attorney fees, paralegal fees, costs and expenses incurred on appeal) if ELITE
employs an attorney to collect the aforesaid amounts or to enforce other rights of ELITE
provided for in this Agreement in the event of any default as set forth above and ELITE
prevails in such litigation.
9) COMPANY’S
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants
to ELITE for the purpose of inducing ELITE to enter into and consummate this Agreement as
follows:
| a) |
The Company has the power and authority to execute, deliver and perform under
this Agreement. |
| b) |
The execution and delivery by the Company of this Agreement have been
duly and validly authorized by all requisite
action by the Company. No license, consent or approval of any form is required for the
Company’s execution and delivery of this Agreement. |
| c) |
No representation or warranty by the Company in this Agreement and no
information in any statement, certificate, exhibit, schedule or other document
furnished, or to be furnished by the Company to ELITE pursuant hereto, or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements contained herein or therein not
misleading. There is no fact which the Company has not disclosed to ELITE, in
writing, or in SEC filings or news announcements, which materially adversely
affects, nor, so far as the Company can now reasonably foresee, may adversely
affect the business, operations, prospects, properties, assets, profits or
condition (financial or otherwise) of the Company. IN NO EVENT WILL THE COMPANY
BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES NOR FOR ANY CLAIM
AGAINST ELITE BY ANY PERSON OR ENTITY ARISING FROM OR IN ANY WAY RELATED TO THIS
AGREEMENT, |
10) ELITE’S DEFAULT
In the event of any default in the
performance by ELITE pursuant to this Agreement, at the sole discreation of the company,
and such default shall continue for five (5) days after the company’s written notice
thereof is received by ELITE; in the event of any default in the performance of any of the
other covenants, conditions, restrictions, agreements, or other provisions herein
contained on the part of ELITE to be performed, kept, complied with or abided by, and such
default shall continue for five (5) days after Company has given ELITE written notice
thereof, or if a petition in bankruptcy is filed by the ELITE, or if ELITE is adjudicated
bankrupt, or if ELITE shall compromise all its debts or assign over all its assets for the
payment thereof, of if a receiver shall be appointed for ELITE’s property, then upon
the happening of any of such events, the Company shall have the right, at its option,
forthwith or thereafter to get back all of its money from ELITE by suit or otherwise and
further, to terminate this Agreement. ELITE covenants and agrees to pay all reasonable
attorney fees, paralegal fees, costs and expenses due of the Company, including court
costs, (including such attorney fees, paralegal fees, costs and expenses incurred on
appeal) if the Company employs an attorney to collect the aforesaid amounts or to enforce
other rights of the Company provided for in this Agreement in the event of any default as
set forth above and the Company prevails in such litigation.
11) LIMITATION OF ELITE
LIABILITY
If ELITE fails to perform its
services hereunder, its entire liability to the Company shall not exceed the lessor of (a)
the amount of cash compensation ELITE has received from the Company under Section 4 of
this Agreement or (b) the actual damage to the Company as a result of such
non-performance. IN NO EVENT WILL ELITE BE LIABLE FOR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES NOR FOR ANY CLAIM AGAINST THE COMPANY BY ANY PERSON OR ENTITY
ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT, UNLESS SUCH DAMAGES RESULT FROM THE
USE, BY ELITE, OF INFORMATION NOT AUTHORIZED BY THE COMPANY.
| a) |
Notices. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given when
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid to the parties hereto at their addresses first above
written. Either party may change his or its address for the purpose of this
paragraph by written notice similarly given. |
| b) |
Entire Agreement. This Agreement represents the entire agreement between the
Parties in relation to its subject matter and supercedes and voids all prior
agreements between such Parties relating to such subject matter. |
| c) |
Amendment of Agreement. This Agreement may be altered or amended, in whole or in
part, only in a writing signed by both Parties. |
| d) |
Waiver. No waiver of any breach or condition of this Agreement shall be deemed
to be a waiver of any other subsequent breach or condition, whether of a like or
different nature, unless such shall be signed by the person making such waiver
and/or which so provides by its terms. |
| e) |
Captions. The captions appearing in this Agreement are inserted as a matter of
convenience and for reference and in no way affect this Agreement, define, limit
or describe its scope or any of its provisions. |
| f) |
Situs. This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida. Venue shall be located in Seminole County,
Florida. |
| g) |
Benefits. This Agreement shall inure to the benefit of and be binding upon the
Parties hereto, their heirs, personal representatives, successors and assigns. |
| h) |
Severability. If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any way render invalid or unenforceable any other
provisions of this Agreement, and this Agreement shall be carried out as if such
invalid or unenforceable provision were not contained herein. |
| i) |
Arbitration. Any controversy, dispute or claim arising out of or relating to
this Agreement or the breach thereof shall be settled by arbitration.
Arbitration proceedings shall be conducted in accordance with the rules then
prevailing of the American Arbitration Association or any successor. The award
of the Arbitration shall be binding on the Parties. Judgment may be entered upon
an arbitration award or in a court of competent jurisdiction and confirmed by
such court. Venue for arbitration proceedings shall be located in Seminole
County, Florida. The costs of arbitration, reasonable attorney’s fees of
the Parties, together with all other expenses, shall be paid as provided in the
Arbitration award. |
| j) |
Currency. In all instances, references to monies used in this Agreement shall be
deemed to be United States dollars. |
| k) |
Multiple Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of such
counterparts shall constitute one (1) instrument. |
IN WITNESS WHEREOF, the Parties have
executed this Agreement on the day and year as follows:
CONFIRMED AND AGREED ON THIS _______ DAY OF ________________, 2004.
ELITE FINANCIAL
COMMUNICATIONS GROUP, LLC
|
|
BY: /S/ ELITE Officer
——————————————
ELITE Officer
Witness
Print Name
Print Name |
|
|
XFONE, INC.
BY: /S/ Duly Authorized
——————————————
Witness
Print Name
Print Name |
