ADVISORY AGREEMENT
AGREEMENT made as of the 27th day of April, 1999 by and between PICK
Communications Corp. (the "Company") a corporation having its principal office
at 000 Xxxxx 00 Xxxx, Xxxxx, Xxx Xxxxxx 00000, and Xxxxxxx Xxxxxxx (the
"Advisor"), an Individual with an address at 000 Xxxxx xx Xxxx Xxxxxxxxx, Xxxxx
000,Xxxxx Xxxxxx, XX 00000.
W I T N E S S E T H
WHEREAS, the Advisor has agreed to resign from the Company's Board of
Directors and the Company desires to retain the Advisor to provide ongoing
financial advisory services; and
WHEREAS, the Advisor desires to be retained to render such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. The Company hereby retains the Advisor on a non-exclusive basis and
the Advisor hereby accepts such retention to perform advisory services related
to corporate finance and other financial service matters. In regard to the
foregoing, subject to the terms set forth below, the Advisor shall furnish to
the Company advice and recommendations with respect to such aspects of the
business and affairs of the Company as the Company shall, from time to time,
reasonably request upon no less than three business day's notice, unless the
Advisor agrees to a lesser amount of notice for specific requested services
hereunder.
2. The Advisor shall hold itself ready to assist the Company in
evaluating and negotiating particular contracts or transactions, if requested to
do so by the Company, upon reasonable notice. Nothing herein shall require the
Company to utilize the Advisor's services in any particular transactions nor
shall it limit the Company's obligations arising under any other agreement or
understanding.
3. For the services described in Paragraphs 1 and 2 of the Agreement,
the Company hereby agrees that the non-qualified stock options (the "Options")
granted on March 3, 1999 to purchase 500,000 shares of the Company's common
stock at a price of $.51 per share, as well as all other outstanding options
held by the Advisor, shall remain in full force and effect and shall not be
affected by the Advisor's resignation from the Company's Board of Directors.
4. In addition, the Advisor shall be entitled to receive the same
sales compensation as all other independent contractors of the Company in
accordance with the formula set forth in the Company's current business plan
and/or as stipulated by the Company's Board of Directors.
5. Upon the request of the holders of a majority of the Options at any
time after the Options become exercisable, the Company agrees, at its sole
expense, to use its best efforts to
cause the common stock underlying the Options to become registered under the
Securities Act of 1933, as amended (the "Act").
6. All obligations of the Advisor contained herein shall be subject to
the Advisor's reasonable availability for such performance, in view of the
nature of the requested service and the amount of notice received. The Advisor
shall devote such time and effort to the performance of its duties hereunder as
the Advisor shall determine is reasonably necessary for such performance. The
Advisor may look to such others for such factual information, investment
recommendations, economic advice and/or research, upon which to base its advice
to the Company hereunder, as it shall deem appropriate. The Company shall
furnish to the Advisor all information relevant to the performance by the
Advisor of its obligations under this Agreement, or particular projects as to
which the Advisor is acting as advisor, which will permit the Advisor to know
all facts material to the advice to be rendered, and all material or information
reasonably requested by the Advisor.
7. (a) Except as otherwise provided in this Agreement, nothing
contained in this Agreement shall limit or restrict the right of the Advisor or
of any partner, employee, agent or representative of the Advisor, to be a
partner, director, officer, employee, agent or representative of, or to engage
in, any other business, nor to limit or restrict the right of the Advisor to
render services of any kind to any other corporation, firm, individual or
association.
(b) The Advisor shall not induce or encourage, or assist or
participate in any way in inducing or encouraging, any employee, officer,
director or independent contractor to resign from, terminate or cease any
position, agreement, consulting or relationship with the Company and shall not
in any way interfere with or induce or encourage any breach of any such
agreement, consulting or relationship; nor shall he hire, retain or employ any
person who is or shall be, an employee, officer or independent contractor of the
Company.
(c) The Advisor shall not, in connection with any business,
occupation, enterprise or trade that is the same as or similar to or that
competes with any business, occupation, enterprise or trade engaged in by the
Company, solicit, do business with or provide goods or services to any person or
entity that is or was a customer or client of the Company or a party to any
agreement with the Company or that received goods, services or information from
the Company. The Advisor shall not interfere with or intervene in any
transaction or relationship between the Company and any such person or entity.
The Advisor shall not induce, encourage or recommend, directly or indirectly,
that any such person or entity engage in any business or transaction with any
third party in connection with any business, commercial activity or field
engaged in by the Company prior to such termination. The Advisor shall not
knowingly or intentionally damage or destroy the reputation or goodwill of the
Company or any regard for the Company among its suppliers, employees,
independent contractors, customers or others that have acquired goods or
services from the Company or that have engaged in any transaction with the
Company.
2
8. The Advisor will hold in confidence any confidential information
which the Company provides to the Advisor pursuant to this Agreement unless the
Company gives the Advisor permission in writing to disclose such confidential
information to a specific third party. Notwithstanding the foregoing, the
Advisor shall not be required to maintain confidentiality with respect to
information which (i) is or becomes part of the public domain; (ii) it had
independent knowledge prior to disclosure; (iii) comes into the possession of
the Advisor in the normal and routine course of its own business from and
through independent non-confidential sources; or (iv) is required to be
disclosed by the Advisor by governmental requirements. If the Advisor is
requested or required (by oral questions, interrogatories, requests for
information or document subpoenas, civil investigative demands, or similar
process) to disclose any confidential information supplied to it by the Company,
or the existence of other negotiations in the course of its dealings with the
Company or its representatives, the Advisor shall, unless prohibited by law,
promptly notify the Company of such request(s) so that the Company may seek an
appropriate protective order. For the purposes set forth in this Paragraph,
Advisor shall also mean any affiliate of Advisor. Affiliate shall mean any
person, firm or corporation which controls or is controlled by Advisor.
9. The Company and the Advisor agree to indemnify and hold each other
harmless, including their respective partners, employees, agents,
representatives and controlling persons (and the officers, directors, employees,
agents, representatives and controlling persons of each of them) from and
against any and all losses, claims, damages, liabilities, costs and expenses
(and all actions, suits, proceedings or claims in respect thereof) and any legal
or other expenses in giving testimony or furnishing documents in response to a
subpoena or otherwise (including, without limitation, the cost of investigating,
preparing or defending any such action, suit, proceeding or claim, whether or
not in connection with any action, suit, proceeding or claim in which the
Advisor or the Company is a party), as and when incurred, directly or
indirectly, caused by, relating to, based upon or arising out of the Advisor's
service pursuant to this Agreement. This Paragraph shall survive the termination
of this Agreement.
10. This Agreement may not be transferred, assigned or delegated by any
of the parties hereto without the prior written consent of the other party
hereto.
11. The failure or neglect of the parties hereto to insist, in any one
or more instances, upon the strict performance of any of the terms or conditions
of this Agreement, or their waiver of strict performance of any of the terms or
conditions of this Agreement, shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
12. This Agreement shall terminate upon the mutual agreement of the
parties.
13. Any notices hereunder shall be sent to the Company and to the
Advisor at their respective addresses set forth above. Any notice shall be given
by registered or certified mail, postage prepaid, and shall be deemed to have
been given when deposited in the United States
3
mail. Either party may designate any other address to which notice shall be
given by giving written notice to the other of such change of address in the
manner herein provided.
14. This Agreement has been made in the State of New York and shall be
construed and governed in accordance with the laws thereof without giving effect
to principles governing conflicts of law.
15. This Agreement contains the entire agreement between the parties,
may not be altered or modified, except in writing and signed by the party to be
charged thereby, and supersedes any and all previous agreements between the
parties relating to the subject matter hereof.
16. This Agreement shall be binding upon the parties hereto, the
indemnified parties referred to in Section 9, and their respective heirs,
administrators, successors and permitted assigns.
4
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
PICK COMMUNICATIONS CORP.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx,
Chief Executive Officer
/s/ Xxxxxxx Xxxxxxx
--------------------------
Xxxxxxx Xxxxxxx
5
