CONSULTING AGREEMENT
Exhibit
10.100
This
Consulting Agreement ("Agreement") is entered into on March 28, 2007, to be
effective as of January 1, 2007, by and between Xfone,
Inc.,
a
Nevada corporation (the "Company") and Xxx
Xxxxxxxxx
(the
"Consultant").
WHEREAS,
the
Consultant has been the President and CEO of the Company (the "Board") since
the
inception of the Company, and is indirectly a major shareholder of the Company;
and
WHEREAS,
the
Consultant has expertise in the areas of telecommunication, corporate
management, finance, investment, mergers and acquisitions, product and service
strategy, and other areas relating to the business of the Company;
and
WHEREAS,
the
Company desires to avail itself of the expertise of the Consultant in the
aforesaid areas, in which it acknowledges the expertise of the
Consultant.
NOW,
THEREFORE,
in
consideration of the foregoing recitals and other good and valuable
consideration, the Company and the Consultant do hereby agree as
follows:
APPOINTMENT
| 1. |
The
Company hereby appoints the Consultant to render the advisory and
consulting services described below in Section 4 of this Agreement
(the
"Services") during the effective term of this Agreement.
|
| 2. |
In
connection with the provision of the Services pursuant to this Agreement,
the Consultant shall report directly and only to the Board and the
Chairman of the Board.
|
| 3. |
It
is hereby clarified that nothing in this Agreement, including in
the
provision of the Services under it, shall derogate from, or conflict
with,
any duties and/or responsibilities and/or authority under and/or
pursuant
to the Articles of Incorporation and/or the Bylaws of the Company
and/or
any rules and/or regulations and/or guidelines of the AMEX and/or
the TASE
(and/or any other applicable stock exchange) and/or any rules and/or
regulations and/or guidelines of the U.S. SEC and/or the ISA (and/or
any
other applicable securities commission or authority) and/or the laws
of
the state of Nevada and/or any other law and/or act and/or regulation
that
applies and/or shall apply to the Consultant due to his position
as the
President and CEO of the Company.
|
SERVICES
| 4. |
During
the effective term of this Agreement, the Consultant shall render
the
Company advisory, consulting and other services in relation to the
business and operations of the Company (excluding its business and
operations in the United Kingdom), including, without limitation
in the
areas set forth above in the foregoing
recitals.
|
| 5. |
The
Consultant undertakes to faithfully serve the Company and to use
his best
efforts to promote the Company’s
interests.
|
| 6. |
During
the effective term of this Agreement, the Consultant shall not be
allowed
to provide advisory or consulting services, substantially similar
to the
Services, to any telecommunication company, other than the Company
(and
its subsidiaries and affiliates), or to any individual who acts in
the
field of telecommunication, unless the provision of such advisory
and/or
services was pre-approved by the Board. Such Board approval shall
be
subject to the prior recommendation of the Audit Committee of the
Company
(the "Audit Committee").
Nothing
in this Section shall derogate form
Section 19 of this Agreement.
|
FEES,
BONUSES AND OPTIONS
| 7. |
In
consideration of the performance of the Services pursuant to this
Agreement, the Company shall pay the Consultant a monthly fee of
Ten
Thousand British Pounds (£10,000) (the "Fee"). The Consultant shall
invoice the Company at the end of each calendar month and the Company
shall make the monthly payment immediately upon receiving such invoice.
|
Once
a
calendar year, and no later than December 15, the Board shall consider approving
an increase to the Fee. Such Board approval shall be subject to the prior
review, oversight and recommendation to the Board of both the Audit Committee
and the Compensation Committee of the Company (the "Compensation Committee").
However, in the event the Company has not established a Compensation Committee,
the review, oversight and recommendation to the Board of the Audit Committee
shall suffice. In connection with the performance of this paragraph, the Audit
Committee, the Compensation Committee and the Board shall take into account,
among other factors, growth in the Company’s revenues and/or
profits.
| 8. |
The
Board shall, from time to time, and not less than once a calendar
year,
consider approving a grant of success bonus to the Consultant (the
"Bonus"). Such Board approval shall be subject to the prior review,
oversight and recommendation to the Board of both the Audit Committee
and
the Compensation Committee. However, in the event the Company has
not
established a Compensation Committee, the review, oversight and
recommendation to the Board of the Audit Committee shall suffice.
In
connection with the performance of this Section, the Audit Committee,
the
Compensation Committee and the Board shall take into account, among
other
factors, growth in the Company’s revenues and/or profits and/or successful
completion of transactions or activities by the Company (such as,
but not
limited to, reorganization, mergers, acquisitions, capital raisings
and
cost cuts).
|
It
is
hereby clarified that any Board member, except the Consultant, may, at any
time
and from time to time, initiate a Bonus grant to the Consultant, and that in
such an event the approving process contemplated by this Section shall be set
in
motion.
| 9. |
Immediately
upon the establishment by the Company of any new stock option or
purchase
plan or other equity compensation arrangement pursuant to which options
or
stock may be acquired by officers, directors, employees, or consultants
of
the Company (collectively, "Plan"), the Board shall consider approving
a
grant of an appropriate amount of options (or any other applicable
rights)
under the Plan to the Consultant. Such Board approval shall be subject
to
the prior review, oversight and recommendation to the Board of both
the
Audit Committee and the Compensation Committee. However, in the event
the
Company has not established a Compensation Committee, the review,
oversight and recommendation to the Board of the Audit Committee
shall
suffice.
|
EXPENSES
| 10. |
In
addition to the Fee and the Bonus, the Company shall pay directly
and/or
reimburse the Consultant for the Consultant's
Expenses.
|
For
the
purposes of this Agreement, the term "Expenses" shall mean any and all amounts
actually paid by the Company and/or by the Consultant, and/or to be paid by
the
Company at the Consultant’s direction, including, without limitation (i) costs
associated with telecommunication services and products, and (ii) costs
associated with transportation and/or travel (including, but not limited to,
by
plane, train, rented car and taxi) and/or accommodation (including, but not
limited to, at rented flats and hotels) and/or any other board and lodging
expenses (including, but not limited to, food, restaurants and entertainment)
which were and/or will be incurred in connection with the performance of the
Services pursuant to this Agreement.
| 11. |
The
Company acknowledges that in order to render the Services pursuant
to this
Agreement, the Consultant may be required to travel frequently around
the
world. Therefore, in order to enable the Consultant a normal family
life
the Company shall bear Expenses which are related to the Consultant's
spouse.
|
| 12. |
In
connection with the performance of Section 10 of to this Agreement,
the
Consultant shall hold and use, in his sole discretion, credit cards
in the
name of the Company (the "Credit Cards").
|
It
is
hereby clarified that due to the Consultant's position with the Company (i.e.
President and CEO) the Consultant may from time to time use the Credit Cards
to
make certain Company payments and pay certain Company expenses.
| 13. |
All
reimbursements of Expenses shall be made promptly upon, or as soon
as
practicable after presentation by the Consultant to the Company of
the
statement in connection therewith.
|
TERMINATION
| 14. |
This
Agreement shall be in effect for an initial fixed term of five (5)
years,
beginning on January 1, 2007 (the "Initial Effective Term"), and
thereafter, unless terminated as provided below, shall automatically
be
renewed for additional terms of three (3) years (each, an "Additional
Effective Term").
|
Notwithstanding
the foregoing, each of the Company and the Consultant shall have the right
to
terminate the automatic renewal of this Agreement, for any reason whatsoever,
by
a termination notice in writing, to be provided to the other party not less
than
six (6) months prior to: (i) the expiration of the Initial Effective Term,
or
(ii) the expiration of any Additional Effective Term (the "Notice
Period").
Notwithstanding
the foregoing, as long as the Consultant shall command and/or control, directly
and/or indirectly, including together with others (as well as pursuant to that
certain Voting Agreement dated September 28, 2004, by and among the Consultant,
Xxxxxxx Xxxxxx and Campbeltown Business Ltd.) and/or by proxies, fifteen percent
(15%) or more of the voting rights of the Company, if the Company shall choose
to exercise its right to terminate the automatic renewal of this Agreement,
the
Notice Period shall be of not less than twelve (12) months.
| 15. |
Notwithstanding
the foregoing, the Consultant shall have the right to terminate this
Agreement, for any reason whatsoever, and at any time, including
during
the Initial Effective Term ("Early Termination by the Consultant").
|
In
the
event of Early Termination by the Consultant, the Notice Period shall be of
not
less than eight (8) months.
In
order
to remove doubt, in the event of Early Termination by the Consultant, the
entitlement of the Consultant to the Fee and the Bonus shall be void immediately
upon the termination of this Agreement, and his rights shall be as set forth
in
the Severance Agreement (as defined below in Section 17).
| 16. |
It
is hereby clarified that the Notice Period shall constitute a part
of the
effective term of this Agreement. Without prejudice to the generality
of
the above, during the Notice Period the Company and the Consultant
shall
continue to perform this Agreement, and their mutual rights and
obligations under this Agreement shall not be affected, in any manner
whatsoever, by the termination notice.
|
SEVERANCE
AGREEMENT
| 17. |
No
later than June 30, 2007, the Company and the Consultant shall enter
into
a severance agreement providing for an appropriate severance package
for
the Consultant (the "Severance Agreement"). The Severance Agreement
shall,
inter alia, cover events of termination of the automatic renewal
of this
Agreement by the Company or the Consultant, termination of this Agreement
by the Consultant, and scheduled retirement by the Consultant.
|
WORK
PRODUCT
| 18. |
All
work product created by the Consultant in connection with the Services
shall be "work for hire", and the Company shall be the sole rightful
owner
under U.S. intellectual property laws, free and clear of all claims
of
ownership or otherwise (including the Consultant's). The Consultant
will
do any and all things, and execute any and all documents as may be
appropriate to achieve the objectives of this Section.
|
NON-COMPETE
| 19. |
| a. |
The
Consultant shall not, directly or indirectly, compete with the Company
(including its subsidiaries and affiliates) and its successors and
assigns
during the effective term of this Agreement and for a period of six
(6)
months following its termination, for any reason whatsoever.
|
The
term
"not compete" as used herein shall mean, inter alia, that the Consultant shall
not own, manage, operate, consult or be employed in a business substantially
similar to, or competitive with, the present business of the Company (including
its subsidiaries and affiliates) or such other business activity in which the
Company (including its subsidiaries and affiliates) may substantially engage
during the effective term of this Agreement.
| b. |
During
the effective term of this Agreement and for a period of six (6)
months
following its termination, for any reason whatsoever, the Consultant
will
neither solicit nor employ any Company employee to engage in a competing
business, nor solicit the business of any client of the Company or
prospective client of the Company with respect to whom the Company
has
conducted an on-site
macro-assessment.
|
CONFIDENTIALITY
| 20. |
The
Consultant shall treat as confidential any and all Confidential
Information related, directly or indirectly, to the Company (including
its
subsidiaries and affiliates), and shall not use and/or disclose and/or
disseminate Confidential Information for purposes other than providing
the
Services pursuant to this Agreement.
|
For
purposes of this Agreement, "Confidential Information" shall include, but
not be limited to, any and all information of a confidential and/or proprietary
nature which relates to the business, activities, technology, products,
services, marketing, research and financials of the Company (including its
subsidiaries and affiliates). The provisions of this Section shall survive
the
termination of this Agreement.
MISCELLANEOUS
| 21. |
| a. |
This
Agreement and the rights and/or obligations of the parties hereunder
may
not be assigned without the prior written consent of both the Company
and
the Consultant.
|
| b. |
This
Agreement shall inure to the benefit of, and be binding upon, the
Company
and the Consultant, and their respective successors and assigns.
|
| c. |
No
amendment or waiver of any provision of this Agreement, or consent
to any
departure by either party from any such provision, shall be effective
unless the same shall be in writing and signed by the parties to
this
Agreement, and, in any case, such amendment, waiver or consent shall
be
effective only in the specific instance and for the specific purpose
for
which it was given.
|
| d. |
This
Agreement shall constitute the entire agreement between the parties
with
respect to the subject matter hereof, and shall supersede all previous,
oral and/or written, negotiations, commitments, understandings and
agreements relating to the subject matter
hereto.
|
| e. |
This
Agreement shall be governed by, construed and enforced in accordance
with
the laws of the State of New York, without regard to choice of law
principles. Each of the parties hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of
the
State of New York, located in the County of New York, in any action
or
proceeding arising out of or relating to this Agreement.
|
5
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be executed and delivered as of the date
set forth above.
| Xfone, Inc. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxx | |
|
|
||
| Chairman of the Audit Committee | ||
| |
|
|
| By: | /s/ Xxx Xxxxxxxxx | |
|
|
||
