SERVICE AGREEMENT
Exhibit
10.91
This
Agreement is entered into on November 7, 2006, to be effective as of November
1,
2006, by and between Xfone,
Inc. (“XFONE”
or
the
“Company”),
with
offices at Britannia House, 000 Xxxx Xxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx,
and
Institutional
Marketing Services, Inc. (‘‘IMS”) with
offices at 000 Xxxx Xxxxxx, Xxxxx 0000 Xxx Xxxx, XX 00000, Xxxxxx
Xxxxxx.
WHEREAS,
XFONE
is
a U.S.-domiciled corporation, with operations in the United Kingdom, the
United
States and Israel, that provides international voice, video and data
communications services; and
WHEREAS, IMS
is
a
U.S.-domiciled company
that
provides investor relations services; and
WHEREAS,
XFONE
desires to retain IMS to render its services to XFONE on the terms and
conditions set forth in this Agreement and IMS desires to be retained by
XFONE
on such terms and conditions.
NOW
THEREFORE, XFONE
and
IMS agree as follows:
IMS'
Duties and Obligations
1. IMS
shall
review and analyze various aspects of XFONE’s goals and make recommendations on
feasibility and achievement of desired goals.
2. At
the
Company’s request, IMS shall be available to manage any calls from firms,
individual investors/shareholders and brokers inquiring about XFONE.
3. IMS
shall
assist XFONE in preparing its Annual and Special Meetings.
4. IMS
shall
assist XFONE in preparing its quarterly and yearly communications relative
to
its financial results and coordinate corresponding news announcements,
conference calls and simulcasts on the Internet in accordance with Regulation
FD.
5. IMS
shall
write, produce and/or assist XFONE in preparing and releasing all news
announcements. XFONE shall be solely responsible for paying all fees associated
with the actual release(s) through PR Newswire, or any other comparable news
dissemination source. IMS shall 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 XFONE and manage the ongoing
distribution of news announcements and/or other Company approved
communications.
6. At
XFONE’s request, strive to obtain XFONE analyst coverage and/or investment
banking sponsorship.
7. IMS
shall
arrange for a series of due diligence meetings with selected 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.
8. IMS
shall
create investor marketing material, including, but not limited to, a company
factsheet.
9. In
association with XFONE’s management team, IMS shall coordinate roadshow
presentations and meetings with appropriate institutional
investors.
10. All
of
the foregoing IMS-prepared documentation concerning the Company, including,
but
not limited to, informational write-ups, news announcements, shareholder
letters, et al, shall be prepared by IMS using materials supplied to it by
the
Company and shall be approved in writing by the Company prior to release,
dissemination or publish by IMS.
11. IMS
shall
not release, publish or disseminate any kind of information concerning the
Company in an unlawful way, and shall comply with all applicable federal
and/or
state laws and/or rules and/or regulations. Without prejudice to the generality
of the foregoing, prior to any dissemination of information concerning the
Company, by E-mail, Fax or mail, IMS shall obtain the recipient's written
consent. IMS shall keep records of such written consents.
12. IMS
acknowledges and is aware that XFONE's securities are listed and traded on
both
the AMEX and the TASE, and IMS therefore undertakes to comply with all
applicable rules and/or regulations and/or guidances of the AMEX and the
TASE.
XFONE's
Duties and Obligations
13. XFONE
will provide IMS
with
all relevant information necessary to carry out its duties and undertakings
under this Agreement in an effectively manner.
14. In
return
for its services pursuant to this Agreement, IMS will be compensated by XFONE
in
the amount of Seven Thousand US Dollar ($7,000) per month, beginning on the
effective date of this Agreement. VAT, if applicable, will be added to each
payment.
In
addition, IMS will be granted an aggregate of 108,000 warrants to purchase
restricted shares of XFONE's common stock (the "Warrants"). The Warrants
will be
exercisable as follows: 36,000 at $3.50 per share; 36,000 at $4.00 per share;
and 36,000 at $4.50 per share; The Warrants will vest at a rate of 3,000
warrants each month (1,000 of each category) for 36 consecutive months. The
Warrants will have a term of five (5) years.
The
grant
of the Warrants shall be subject to obtaining the approval of the American
Stock
Exchange and the Tel Aviv Stock Exchange for listing the shares underlying
the
Warrants.
In
the
event the Company elects early termination of this Agreement, pursuant to
Section 17 herein, then any Warrants that have not yet reached their vesting
date will be cancelled by the Company.
15. XFONE
will reimburse IMS for all reasonable out-of-pocket disbursements made in
the
performance of its duties under this Agreement, provided such out-of-pocket
expenses were pre-approved in writing by XFONE. IMS will maintain accurate
records of all expenditures incurred on XFONE’s behalf. Reimbursement of
out-of-pocket expenses shall include but not be limited to: photocopying,
postage, messenger service, information retrieval service, wire service,
production costs for press releases, travel and entertainment expenses, and
meeting expenses including rental of audio/visual equipment.
Notwithstanding
the foregoing, mail and courier expenses in an aggregate monthly amount which
does not exceeds $500 will not require pre-approval.
Terms
of Payment
16. IMS
shall
invoice XFONE on a monthly basis for the month’s fee and previous month’s
out-of-pocket expenses. XFONE agrees that payment is due within thirty (30)
days
of receipt of invoice. In the event XFONE questions the validity of a charge
by
IMS, payment for only that portion under question may be delayed, provided
XFONE
expresses its objection in writing within fifteen (15) days upon receipt
of
invoice.
Duration
and Termination
17. This
Agreement shall be effective as of November 1, 2006. Either party has the
right
to terminate this agreement, at any time and for any reason whatsoever, with
thirty (30) days prior written notice .
18. Upon
termination of this Agreement, for any reason, IMS shall immediately return
to
the Company all property that is in its possession that is Company's property,
and shall provide the Company with all materials
prepared, composed and collected in connection with the provision of the
services pursuant this Agreement, including but not limited to presentations,
profiles, scripts, investors data base, feedbacks, participants list in events
organized by IMS and e-mail exchanges with investors.
Non-Exclusivity
19. XFONE
reserves the right to appoint or retain any third party to provide services
similar to those rendered by IMS
pursuant to this Agreement.
Confidentiality
20. All
information disclosed by XFONE to IMS which has a confidential nature and/or
marked as “Confidential”, shall be treated by IMS as strictly confidential. IMS
will make all necessary and appropriate efforts to safeguard such information
from disclosure or from unauthorized use. Except as may be required by law,
IMS,
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 XFONE without the
prior
written consent of XFONE.
Indemnification
21. IMS
agrees to indemnify and hold XFONE, its affiliates, control persons, directors,
officers, employees and agents (collectively, the “Indemnified Persons”)
harmless from and against any and all losses, claims, damages, liabilities,
costs or expenses (including reasonable attorneys’ and accountants’ fees)
arising out of the performance of this Agreement, whether or not IMS is a
party
to such dispute. This indemnity shall not apply, however, where a court of
competent jurisdiction has made a final determination that XFONE engaged
in
gross negligence or willful misconduct which gave rise to the loss, claim,
damage, liability, cost or expense sought to be recovered hereunder (but
pending
any such final determination, the indemnification and reimbursement provision
of
this Agreement shall apply and IMS shall perform its obligations hereunder
to
reimburse XFONE for its expenses).
Amendment
22. This
Agreement may not be changed or modified except by a written document executed
and signed by both parties.
Severability
23. Various
provisions and sub-provisions of this Agreement are severable and if any
provision or sub-provision or part thereof is held to be unenforceable by
any
court of competent jurisdiction, then such enforceability shall not affect
the
validity or enforceability of the remaining provisions or sub-provisions
or
parts thereof in this Agreement.
Governing
Law and Jurisdiction
24. This
Agreement shall be governed by the laws of the state of New York, and the
parties submit to the exclusive jurisdiction of the courts of New York in
respect of any dispute or difference between them arising out of this
Agreement.
Miscellaneous
25. XFONE
and IMS
agree
that IMS shall act solely as an independent contractor. Neither IMS
nor
its employees or any other person representing IMS shall be construed as
having
entered into relationship of employer and employee with XFONE.
26. IMS
shall
have no authority to impose, incur or create any debt, liability or obligation
in the name of, on behalf of, and/or for the account of XFONE.
27. 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.
28. Neither
of the parties hereto shall assign or transfer its rights or obligations
pursuant to this Agreement or any portion thereof without the prior written
consent of the other party, except that XFONE may assign or transfer its
rights
and obligations under this Agreement to a subsidiary or entity controlling,
controlled by or under common control with XFONE or to any entity that acquires
all or substantially all of the assets of XFONE or more than fifty percent
(50%)
of the current outstanding voting stock of XFONE.
IN
WITNESS WHEREOF, the parties executed this Agreement as of the date written
above.
| /s/ Xxx Xxxxxxxxx | /s/ Xxxx Xxxxxxx | |||
|
Xfone,
Inc.
|
Institutional
Marketing Services, Inc.
|
|||
|
Name:
|
Xxx
Xxxxxxxxx
|
Name:
|
Xxxx
X. Xxxxxxx
|
|
|
Title:
|
President
& CEO
|
Title:
|
President
|
|
