ADVISORY SERVICES AGREEMENT - JAMES B. PANTHER
Exhibit
4.4
ADVISORY
SERVICES AGREEMENT - XXXXX X. PANTHER
This
Advisory Services Agreement (the “Agreement”)
is
made and entered into May 9, 2007 (the “Effective
Date”),
by
and between (i) Xxxxx X. Panther II, whose principal business address is 0000
Xxxxx xxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (the “
Consultant”)
and
(ii) VoIP, Inc., a Texas corporation, whose principal place of business is
151
South Xxxxxx Road, Suite 3000, Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000 (the
“
Company”).
Consultant and Company may hereinafter be referred to individually as a “party”
or collectively as the “parties.”
WHEREAS,
the
Company requires the Services as defined and set forth herein;
WHEREAS,
Consultant is qualified to provide the Company with the Services and is desirous
to perform such Services for the Company; and
WHEREAS,
the
Company wishes to induce Consultant to provide the Services and wishes to
contract with the Consultant regarding the same and compensate Consultant in
accordance with the terms herein;
NOW,
THEREFORE,
in
consideration of the mutual covenants contained in this Agreement, and for
good
and valuable consideration, the receipt of which is hereby acknowledged, it
is
agreed as follows:
1. APPOINTMENT.
The
Company hereby engages Consultant and Consultant agrees to render the Services
to the Company as a consultant upon the terms and conditions hereinafter set
forth.
2. TERM.
The
term
of this Agreement shall begin as of the date of this Agreement, and shall
terminate 120 days thereafter, or earlier in accordance with Section
9.
3. SERVICES.
During
the term of this Agreement, Consultant shall provide the Company with the
following “Services.”
However, the Services shall be limited to making recommendations and offering
advice to the Company's Officers, Directors and other key Company personnel.
As
an offsite advisor, Consultant will rely upon the Company's management to,
in
the Company's sole discretion, accept or reject its recommendations. Under
no
circumstances, even in the event that Consultant is to perform onsite analysis,
shall Consultant be responsible for making any decisions on behalf of the
Company.
a. Advise
internal management, with particular focus on strategic planning, organizational
and corporate structure, and overall business analysis with the ultimate goal
of
preparing the company for capital market investor due diligence;
b. Advise
the Company in regard to the size of any offering of the Company's securities
and the structure and terms of the offering in light of the current market
environment;
c. Work
with the Company to develop a long-term growth, capital structure and financing
strategy.
d. Provide
introductions to NASD member firm banking relationships, funding and financing
firms, specifically including, but not limited to, X.X. Xxxxxxxxx Towbin, and,
on a best efforts basis, seek an engagement that is in the best interests of
the
Company. The Company hereby agrees to provide an “
Acknowledgement of Introduction
,” a
specimen of which is attached hereto as
Exhibit A
for each
banking, funding or financing firm, specifically including but not limited
to
X.X. Xxxxxxxxx Towbin (each a “
Consultant Protected Relationship”),
that
Consultant introduces the Company to. Each Acknowledgement of Introduction
shall
grant Consultant the exclusive right to assist in any negotiations regarding
the
financing and relationship between the Consultant Protected Relationship and
the
Company. The Company shall additionally agree that by providing Consultant
with
an Acknowledgement of Introduction and commencing the negotiation of a business
relationship with a Consultant Protected Relationship (even if an
Acknowledgement of Introduction was not tendered), that for two (2) years
following Consultant's introduction or for two (2) years subsequent to the
receipt of an Acknowledgement of Introduction, regardless of a termination
of
this Consultant Protected Relationship, that Consultant shall be compensated
in
accordance with Section 4 of this Agreement. Should Consultant's rights to
receive the Section 4 Compensation be compromised in any way (including for
example, by not holding Consultant's compensation in escrow at the time of
the
closing of any such financial transaction), Company hereby consents to
injunctive relief, benefiting the Consultant, in order to segregate all related
monies due and owing to Consultant under this term of the Agreement, in addition
to appropriate monetary damages. Damages shall be equal to an amount of money
equal to not less than the amount of financial benefit Consultant would have
received had the Company complied with the Section 4 Compensation terms. The
term “Consultant Protected Relationship” shall include any person or entity that
Consultant introduced to the Company in connection with this Agreement, or
a
third party person or entity that has a business or other affiliation with
any
person or entity that Consultant introduced to the Company in connection with
Consultant's services under this Agreement. Unless authorized by Consultant
in
writing, under no other circumstances, shall Company make any effort to contact
a Consultant Protected Relationship.
1
e. In
the event that the Company has a prior existing business relationship with
a
party introduced by Consultant as a potential Consultant Protected Relationship,
then the Company shall have a positive obligation to deliver in writing such
a
notification of a prior business relationship within 48 hours of the time that
Consultant makes an introduction. The failure to provide Consultant with notice
of a prior business relationship shall forever waive the Company's right to
subsequently assert that they had a prior existing business relationship with
that respective introduction.
f. Consultant
agrees to provide the Services on a timely basis via: meetings with Company
representatives which may include other professionals; conferences calls with
Company representatives and other professionals; and/or written correspondence
and documentation. Consultant cannot guarantee the results on behalf of the
Company, but shall pursue all avenues that it deems reasonable through its
network of contacts.
4. COMPENSATION. In
connection with this Agreement, The Company shall pay Consultant the following
fees:
a. Cash.
(i)
Within five days of the effectiveness of this Agreement (“Payment
Date One”)
and
(ii) on the 61
st
day of
the effectiveness of this Agreement (“
Payment Date Two”),
Company shall pay Consultant a cash fee equal to $187,500.00.
b. Securities.
Within
5 days of the effectiveness of this Agreement, Consultant shall be issued and
shall receive 250,000 free trading shares of the Company's common stock
registered on Form S-8 (the “
Securities”).
c. Options.
By or
before Payment Date One, Consultant shall have an option to purchase 1,875,000
common Company shares (“
Option One Shares”)
for
$.18 per share. By or before Payment Date Two, Consultant shall have an option
to purchase 1,875,000 common Company shares (“
Option Two Shares”)
for
$.18 per share. The Option Two Shares, if such an option to purchase such common
shares is exercised, shall be registered in a Form S-8 registration statement
and shall be delivered to Consultant free of any restrictive
legend.
d. Warrants.
Within
5 business days of the execution of this Agreement, Consultant shall be issued
a
Common Stock Purchase Warrants (the “
Warrant”),
attached hereto as
Exhibit B
.
e. Success
Fee Credit.
In the
event that the Company obtains financing, in any form, as a result of business
dealings between a Consultant Protected Relationship and the Company, Consultant
shall receive a Success Fee Credit (the “
Success Fee Credit”)
in the
amount of $100,000 for the initial $1,000,000 in financing received by the
Company and ten percent (10%) of any financing received by the Company in excess
of $1,000,000
1
..
The Success Fee Credit shall be split between the Consultant and other third
parties as listed in
Exhibit C
. All
Success Fee Credit funds may only be utilized as a credit towards the exercise
price of any warrants issued to the Consultant or his assigns by the
Company
2
..
All Success Fee Credit funds shall be accounted for and booked by the Company
for the benefit of the parties as outlined in
Exhibit C
, until
such time as the same Success Fee Credit funds have been used. Any Success
Fee
Credits funds shall not bear interest.
All
compensation delivered and paid to Consultant pursuant to this Agreement shall
be deemed completely earned, due, payable and non-assessable as of the date
the
compensation is tendered to Consultant by the Company or the Company's transfer
agent. Once compensation is tendered to Consultant, there shall be no refunds
or
diminishment of the same regardless of any event.
1 For
example, if the Company were to obtain $1,600,000 in financing as a result
of a
Consultant Protected Relationship, Consultant would be entitled to receive
a
Success Fee Credit of $160,000.
2 As
a further extension of the example in Footnote 1 above, if the Consultant or
his
assignee was issued a warrant to purchase 1,000,000 Company common shares for
$.20 per share, and the Consultant or his assignee elected to apply the above
$160,000 Success Fee Credit, then the Company would only receive $40,000 in
addition to the $160,000 Success Fee Credit towards the purchase of the
warrants.
2
5. REPRESENTATIONS
AND WARRANTIES OF COMPANY.
The
Company hereby represents, warrants and agrees as follows:
a. This
Agreement has been authorized, executed and delivered by the Company and, when
executed by the Consultant will constitute the valid and binding agreement
of
the Company enforceable against the Company in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
b. The
financial statements, audited and unaudited (including the notes thereto)
provided to Consultant, (the “
Financial Statements”),
will
present fairly the financial position of the Company as of the dates indicated
and the results of operations and cash flows of the Company for the periods
specified. Such Financial Statements will be prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved except as otherwise stated therein.
c. The
Company is validly organized, existing and with active status under the laws
the
State of Texas.
d. The
securities to be issued to Consultant, if any, have all been authorized for
issuance and when issued, delivered and tendered to the Consultant by the
Company will be validly issued, fully paid and non-assessable.
e. Since
date of the most recent of the Financial Statements, there has not been any
(A)
material adverse change in the business, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company, (B) transaction
that is material to the Company, except transactions in the ordinary course
of
business, (C) obligation that is material to the Company, direct or contingent,
incurred by the Company, except obligations incurred in the ordinary course
of
business, (D) change that is material to the Company or in the common shares
or
outstanding indebtedness of the Company, or (E) dividend or distribution of
any
kind declared, paid, or made in respect of the common shares.
f. The
Company shall be deemed to have been made a continuing representation of the
accuracy of any and all facts, material information and data which it supplies
to Consultant and acknowledges its awareness that Consultant will rely on such
continuing representation in disseminating such information and otherwise
performing its advisory functions. Consultant in the absence of notice in
writing from the Company, will rely on the continuing accuracy of material,
information and data supplied by the Company. Consultant represents that he
has
knowledge of and is experienced in providing the aforementioned
services.
6. STATUS
OF WORK PRODUCT AND OTHER PROPERTY.
Upon
expiration of this Agreement and/or termination of this Agreement (or at any
time upon request by the Company), Consultant will immediately return to the
Company all Company property (including but not limited to all documents,
electronic files/records, keys, records, computer disks, or other tangible
or
intangible things that may or may not relate to or otherwise constitute
confidential information or trade secrets (as defined by applicable law) that
Consultant created, used, possessed, or maintained while in the employ of the
Company, from whatever source. This provision does not apply to purely personal
documents of Consultant, but does apply to business calendars, Rolodexes,
customer lists, contact sheets, computer programs, disks, and their contents,
and like information that may contain some personal matters of
Consultant.
7. INDEMNIFICATION.
The
Company agrees to indemnify the Consultant and hold it harmless against any
losses, claims, damages or liabilities incurred by the Consultant, in connection
with, or relating in any manner, directly or indirectly, to the Consultant
rendering the Services in accordance with the Agreement, unless it is determined
by a court of competent jurisdiction that such losses, claims, damages or
liabilities arose out of the Consultant's breach of this Agreement, sole
negligence, gross negligence, willful misconduct, dishonesty, fraud or violation
of any applicable law. Additionally, the Company agrees to reimburse the
Consultant immediately for any and all expenses, including, without limitation,
attorney fees, incurred by the Consultant in connection with investigating,
preparing to defend or defending, or otherwise being involved in, any lawsuits,
claims or other proceedings arising out of or in connection with or relating
in
any manner, directly or indirectly, to the rendering of any Services by the
Consultant in accordance with the Agreement (as defendant, nonparty, or in
any
other capacity other than as a plaintiff, including, without limitation, as
a
party in an interpleader action). The Company further agrees that the
indemnification and reimbursement commitments set forth in this paragraph shall
extend to any controlling person, strategic alliance, partner, member,
shareholder, director, officer, employee, agent or subcontractor of the
Consultant and their heirs, legal representatives, successors and assigns.
The
provisions set forth in this Section shall survive any termination of this
Agreement.
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8. COMPLIANCE
WITH SECURITIES LAWS.
The
Company understands that any and all Compensation outlined in this Agreement
shall be paid solely and exclusively as consideration for the aforementioned
consulting efforts made by Consultant on behalf of the Company as an independent
contractor. The parties performing the services outlined in this Agreement
are
natural persons and shall only provide advisory services internally to the
Company. Consultant's engagement does not involve the marketing of any Company
securities.
9. MISCELLANEOUS.
a. Termination
and Renewal:
This
Agreement may be terminated by Company only upon written notice to Consultant
and Consultant's failure to cure said material breach within 45 days from
receipt of said notice.
b. Modification:
This
Agreement sets forth the entire understanding of the parties with respect to
the
subject matter hereof. This Agreement may be amended only in writing signed
by
both parties.
c. Notices:
Any
notice required or permitted to be given hereunder shall be in writing and
shall
be mailed or otherwise delivered in person to the parties at the addresses
set
forth above.
d. Waiver:
Any
waiver by either party of a breach of any provision of this Agreement shall
not
operate as or be construed to be a waiver of any other breach of that provision
or of any breach of any other provision of this Agreement. The failure of a
party to insist upon strict adherence to any term of this Agreement on one
or
more occasions will not be considered a waiver or deprive that party of the
right thereafter to insist upon adherence to that term of any other term of
this
Agreement.
e. Assignment:
Compensation under this Agreement is assignable at the sole discretion of the
Consultant.
f.
Severability:
If any
provision of this Agreement is invalid, illegal, or unenforceable, the balance
of this Agreement shall remain in effect. If any provision is inapplicable
to
any person or circumstance, it shall nevertheless remain applicable to all
other
persons and circumstances. If any compensation provision is deemed unenforceable
or illegal, then in the case of the delivery of common stock to the Consultant,
Consultant shall be entitled to receive a cash benefit equal to the value of
the
common stock that would have been tendered had such a provision not been illegal
or unenforceable.
g. Arbitration:
Any
dispute or other disagreement arising from or out of this Agreement shall be
submitted to arbitration under the rules of the American Arbitration Association
and the decision of the arbiter(s) shall be enforceable in any court having
jurisdiction thereof. Arbitration shall occur only in San Diego County, CA.
The
interpretation and the enforcement of this Agreement shall be governed by
California Law as applied to residents of the State of California relating
to
contracts executed in and to be performed solely within the State of
California.
h. Governing
Law:
The
subject matter of this Agreement shall be governed by and construed in
accordance with the laws of the State of California (without reference to its
choice of law principles), and to the exclusion of the law of any other forum,
without regard to the jurisdiction in which any action or special proceeding
may
be instituted. EACH PARTY HERETO AGREES TO SUBMIT TO THE PERSONAL JURISDICTION
AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN THE COUNTY OF SAN DIEGO,
CALIFORNIA FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF, IN CONNECTION WITH,
OR
BY REASON OF THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS
AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS
CONSTITUTE AN INCONVENIENT FORUM. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT,
EACH PARTY SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY ISSUES SO
TRIABLE. If it becomes necessary for any party to institute legal action to
enforce the terms and conditions of this Agreement, the prevailing party shall
be awarded reasonable attorneys fees, expenses and costs.
i.
Specific
Performance:
The
Company and the Consultant shall have the right to demand specific performance
of the terms, and each of them, of this Agreement.
j.
Execution
of the Agreement:
The
Company, the party executing this Agreement on behalf of the Company, and the
Consultant, have the requisite corporate power and authority to enter into
and
carry out the terms and conditions of this Agreement, as well as all
transactions contemplated hereunder. All corporate proceedings have been taken
and all corporate authorizations and approvals have been secured which are
necessary to authorize the execution, delivery and performance by the Company
and the Consultant of this Agreement. This Agreement has been duly and validly
executed and delivered by the Company and the Consultant and constitutes a
valid
and binding obligation, enforceable in accordance with the respective terms
herein. Upon delivery of this Agreement, this Agreement, and the other
agreements and exhibits referred to herein, will constitute the valid and
binding obligations of Company, and will be enforceable in accordance with
their
respective terms. Delivery may take place via facsimile
transmission.
4
k. Joint
Drafting.
This
Agreement shall be deemed to have been drafted jointly by the Parties hereto,
and no inference or interpretation against any one party shall be made solely
by
virtue of such party allegedly having been the draftsperson of this Agreement.
The parties have each conducted sufficient and appropriate due diligence with
respect to the facts and circumstances surrounding and related to this
Agreement. The parties expressly disclaim all reliance upon, and prospectively
waive any fraud, misrepresentation, negligence or other claim based on
information supplied by the other party, in any way relating to the subject
matter of this Agreement.
l.
Acknowledgments
and Assent.
The
parties acknowledge that they have been given at least ten (10) days to consider
this Agreement and that they were advised to consult with an independent
attorney prior to signing this Agreement and that they have in fact consulted
with counsel of their own choosing prior to executing this Agreement. The
parties may revoke this Agreement for a period of three (3) days after signing
this Agreement, and the Agreement shall not be effective or enforceable until
the expiration of this three (3) day revocation period. The parties agree that
they have read this Agreement and understand the content herein, and freely
and
voluntarily assent to all of the terms herein.
m. Exhibits:
Exhibits A thru C.
SIGNATURE
PAGE FOLLOWS
IN
WITNESS WHEREOF, this Agreement has been executed by the parties as of the
date
first above written.
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COMPANY
|
CONSULTANT
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VOIP,
INC.
|
XXXXX
X. PANTHER II
|
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/s/
Xxxxxxx X. Xxxxxxx
|
/s/
Xxxxx X. Panther II
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By:
Xxxxxxx X. Xxxxxxx
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By:
Xxxxx X. Panther II
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Its:
Chief Executive Officer
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An:
Individual
|
A
FACSIMILE COPY OF THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AS AN ORIGINAL
OF THE SAME
.
