XXXXX & CO. CONSULTING AGREEMENT
January 09, 2004
__________ xfone, inc. __________. (the "Company")
On behalf of Xxxxx & Co. ("Xxxxx"), I look forward to working with you as an
outside business consultant. The purpose of this letter (the "Agreement") is to
set forth the terms and conditions under which Xxxxx agrees to serve the Company
as an outside business consultant.
1. Services. Xxxxx shall use its best efforts to perform the following
services in a timely manner: (a) become familiar with the business and
operations of the Company and review and analyze the Company's formal
and informal strategic, marketing, financial and business plans and (b)
advice the Company in strategic planning matters and assist in the
implementation of short- and long-term strategic planning initiatives
to enhance and accelerate the commercialization of the Company's
business objectives.
2. Term. This Agreement shall be in effect for six (6) months from the
date of acceptance by the Company.
3. Consideration. For the valuable advice and services to be provided by
Xxxxx to the Company under this Agreement, the Company will issue to
Xxxxx (i) ___ 17,500 _____ shares of the Company's common stock (the
"Shares") and (ii) 17500 warrants at $3.50 which expire 10 days after
the company's commencement of trading on nasadaq small cap or amex
(iii) 17,500 warrants at $5.50. This warrant is a 5 year warrant. All
compensation due to Xxxxx under the terms of this Agreement shall be
deemed earned upon execution hereof. The Shares and shares underlying
the Warrants shall have anti-dilution provisions, piggy-back
registrations right and cashless exercise rights.
4. Representations and Warranties. The Company represents and warrants to
Xxxxx that the statements contained in paragraph 4 are correct and
complete as of the Effective Date: (a) The Company is a corporation
duly organized, validly existing and active under the laws of the State
of New York (b) The Company has full corporate power and authority to
(i) conduct its business as now conducted and as a proposed to be
conducted and to own, use, license, and lease its assets and properties
and (ii) enter into this Agreement and to consummate the transactions
contemplated herein.
5. Expenses. In addition to the consideration set forth in paragraph 3,
the Company shall reimburse Xxxxx and its affiliates, upon request, for
all reasonable out-of-pocket expenses incurred in connection with the
performance by Xxxxx of its obligations under this Agreement.
Out-of-pocket expenses may include necessary out-of-town travel agreed
to by the Company (including meals and lodging), database services,
courier charges, and fees and expenses of third parties such as legal
counsel, etc. The Company shall approve such expenses in advance.
6. Indemnity. The Company agrees to indemnify, defend, and hold harmless
Xxxxx and its affiliates, directors, officers, counsel, employees,
agents, members, managers, successors, assigns and controlling persons
(as defined in the Act) (each, an "Indemnified Party") from and against
any and all losses, claims damages, costs, expenses, and liabilities
(including any investigatory, legal, and other expenses incurred as
they are incurred by an Indemnified Party in connection with preparing
for or defending any action, claim, or proceeding, whether or not
resulting in any liability) (collectively, "Indemnifiable Losses") to
which any Indemnified Party may become subject or liable relating to or
a rising out of (a) the Agreement or the services to be performed under
the Agreement or any agreement between the parties to this Agreement
(b) any transactions referred to in the Agreement or any transactions
arising out of the transactions contemplated by the Agreement, (c) any
inaccuracy in or breach in the representations and warranties of the
Company contained in this Agreement, and (d) any failure of the Company
to perform its obligations under this Agreement, provided that the
Company shall not be liable to an Indemnified Party in any such case to
the extent that any jurisdiction to have resulted as a direct and
proximate cause from the willful misconduct or gross negligence of an
Indemnified Party. No Indemnified Party shall be liable, responsible,
or accountable in damages and costs and expenses (including attorneys'
fees) under this Agreement except fro any liability for losses, claims,
damages, or liabilities finally judicially determined to have resulted
solely and exclusively from actions taken or omitted to be taken as a
direct result of such Indemnified Party or insufficient to fully hold
any Indemnified Party harmless, then the Company agrees to contribute
to the amount paid or payable by such Indemnified Party as a result of
such Indemnifiable Losses in such proportion as is appropriate to
reflect the relative benefits received by and fault of the Company, on
the one hand, and the relative benefits received by and fault of Xxxxx,
on the other hand.
7. Legal Matters. This Agreement shall be interpreted under the governed
by the laws of the State of New York. Any controversy, dispute, or
claim between the parties relating to this Agreement shall be resolved
by binding arbitration in accordance with the rules of this American
Arbitration Association.
8. Representation. The Company acknowledges that it has been given notice
by Xxxxx that Xxxxx is not a ------------------------------------------
------------- licensed securities broker-dealer and therefore Xxxxx is
not required under this Agreement or any side -------------------------
---------------------------------------------------- agreement, whether
verbally or in writing, to sell securities on behalf of the Company or
any issuer ----------------------------------------------- affiliated
with the Company. Moreover, the Company acknowledges that Xxxxx does
not intend to ----------------------------- negotiate raising of
capital transactions, does not intend to directly solicit purchasers of
the Company's common stock, will not hold any funds or securities in a
capital raising transaction, and the compensation due to Xxxxx is not
based on a specified percentage of any actual or proposed funds raised.
The Company acknowledges that Xxxxx has informed it that neither Xxxxx
nor any of its members or employees provides any legal advice or
counsel. The duties of Xxxxx shall not include auditing, valuation,
accounting, computer network design or appraisal services, which shall
be procured by the Company at its own expense.
9. Independent Contractor. Xxxxx is an independent contractor and may
engage in other business activities. Since Xxxxx is an independent
contractor, nothing in this Agreement shall be interrupted to
constitute that Xxxxx is an agent, employee, or partner of the Company,
nor shall either party have any authority to bind the other.
10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and
supersedes and cancels any prior communications, representations,
understanding, and agreements between the parties. No modifications of
or changes to this Agreement shall be binding, nor can any of is
provisions be waived, unless agreed to in writing by the parties. There
are no side agreements, whether verbally or in writing, between the
Company and Xxxxx.
11. Confidentiality. The parties agreed that the terms and all of the
encompassing components of this Agreement shall be kept confidential,
unless this information is required to be disclosed pursuant to any
inquiries by federal, state, or local law enforcement or pursuant to
paragraph 9.
If the foregoing is acceptable to you, please execute this Agreement in
the place provided below.
Very Truly Yours,
By:
-------------------------------------------------
Xxxx X. Xxxxx
ACCEPTED AND AGREED
Company:
-------------------------------------------
By:
--------------------------------------------------
