This document was entered into in Hebrew and has been translated into English for purposes of this filing Agreement for Market Making in Securities Made and entered into on July 31, 2006
Exhibit
10.89
This
document was entered into in Hebrew
and
has
been translated into English for purposes of this filing
Agreement
for Market Making in Securities
Made
and
entered into on July 31, 2006
Between:
Excellence
Nessuah Stock Exchange Services Ltd.
From
7
Jabotinski St., Ramat Gan,
Who
shall
be referred to hereinafter solely for the purpose of brevity as the "Market
Maker"
On
the
one hand
And:
Xfone,
Inc.
Whose
address for the sole purpose of this agreement shall be
▇.▇.
▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
Who
shall
be referred to hereinafter solely for the purpose of brevity as the
"Corporation"
On
the
other hand
Whereas the
Corporation has registered its securities by way of "Dual Listing" in the
Tel-Aviv Stock Exchange Ltd. (hereinafter: the "Stock
Exchange")
pursuant to the provisions of chapter E3 of the Securities
▇▇▇ ▇▇▇▇
(hereinafter: the "Securities
Act");
and
Whereas the
Corporation is interested in the services of the Market Maker in order to
execute market making in the securities detailed in section 4 of this agreement
(hereinafter: the "Securities"),
all
subject to the provisions of this agreement, the provisions of the Stock
Exchange bylaws (hereinafter: the "Stock
Exchange Bylaws"),
the
Stock Exchange guidelines and the resolutions of the board of directors of
the
Stock Exchange (hereinafter collectively, solely for the purpose of brevity:
the
"Stock
Exchange Guidelines")
in the
matter of the Marker Maker, as updated from time to time, and subject to the
Securities Act and the provisions of the Securities Authority and the provisions
of any other law which applies and which shall apply to the activity of the
market making; and
-1-
Whereas the
Market Maker represents that it is a member of the Stock Exchange (hereinafter:
a "Stock
Exchange Member"),
and
that it had received the approval of the Stock Exchange to act as a "Market
Maker", and also that it is capable of carrying out its duty as a securities
"Market Maker", and it hereby undertakes to perform its duty as a "Market
Maker"; and
Whereas the
Market Maker undertakes to act in order to receive the approval of the Stock
Exchange for its activity as a "Market Maker" pursuant to the provisions of
this
agreement,
Therefore
it is declared, stipulated and agreed between the parties as
follows:
1. General
|
1.1
|
The
preface to this agreement, including all representations detailed
therein,
is an inseparable part of this
agreement.
|
|
1.2
|
The
appendices to this agreement are an inseparable part thereof and
all
matters stated therein shall be deemed to be terms of this
agreement.
|
2. Representations
of the Corporation
|
2.1
|
The
Corporation represents and confirms, that all the documents which
are
necessary pursuant to its incorporation documents and the provisions
of
any law for it to enter this agreement pursuant to its terms have
been
received, and that there is no legal or other preclusion to it entering
into this agreement pursuant to its
terms.
|
|
2.2
|
The
Corporation knows that the Stock Exchange will advertise the name
of the
Market Maker in the Securities as well as information with respect
to the
actions of the Market Maker as specified in the Stock Exchange
Bylaws.
|
|
2.3
|
The
Corporation knows and it agrees that within its activity as a "Market
Maker" the Market Maker shall not be entitled to receive, directly
or
indirectly, instruction in connection with the purchase or sale of
the
Securities, and in particular instructions originated in the Corporation
or in a controlling person thereof, and the Corporation undertakes
to
guide and update its controlling persons with this
provision.
|
3. Representations
of the Market Maker
|
3.1
|
The
Market Maker represents and confirms, that all the documents which
are
necessary pursuant to its incorporation documents and the provisions
of
any law for it to enter this agreement pursuant to its terms have
been
received, and that there is no legal or other preclusion to it entering
into this agreement pursuant to its
terms.
|
|
3.2
|
The
Market Maker represents that the Stock Exchange Bylaws and the Stock
Exchange Guidelines dealing with market making are well known to
it, and
the Market Maker represents and undertakes to act according to the
Provisions of the Stock Exchange Bylaws and the Stock Exchange Guidelines,
as updated from time to time.
|
|
3.3
|
The
Market Maker represents and undertakes that it will not act as a
market
maker in the securities of a corporation of control thereof or of
any
corporation that is controlled by it or is at the ownership of a
person
controlling it.
|
|
3.4
|
The
Market Maker represents that it intends to contact and that it has
contacted additional corporations for the performance of market making
activities in their securities.
|
|
3.5
|
The
Market Maker knows and it agrees that the Corporation is in no way
responsible for the actions of market making by the Market Maker,
and that
the Market Maker shall not be entitled to any indemnification from
the
Corporation for the Securities' market making as mentioned herein
and/or
due to any loss and/or damage incurred by the Market Maker as a result
of
its execution of this agreement and/or as a result of the market
making in
the Securities.
|
|
3.6
|
The
Market Maker hereby undertakes to present the the Corporation with
any
report issued by the Stock Exchange with respect to its activity
in
accordance with the Stock Exchange Bylaws and/or the Stock Exchange
Guidelines, promptly upon the issuance of the report by the Stock
Exchange
and its receipt by the Market
Maker.
|
|
3.7
|
The
Market Maker hereby undertakes to present the the Corporation once
per
quarter with a report issued by it, which will concentrate all data
with
respect to the activity of the Securities' market making, in a layout
to
be agreed upon between the Market Maker and the Corporation.
|
-2-
4. Classification
of the Securities
The
Market Maker shall act as "Market Maker" in the following
securities:
|
4.1
|
Name
of the stock: Xfone
|
|
4.2
|
Stock
number: 1098169
|
|
4.3
|
Symbol:
אקספ (XFN)
|
5. The
Market Making
|
5.1
|
The
Market Maker represents and undertakes that it will perform orders
of
purchase and sale of the Securities solely for the purpose of market
making for its own account (hereinafter: "Nostro
Account").
|
|
5.2
|
The
Market Maker undertakes to issue, subject to the Stock Exchange Bylaws
and
the Stock Exchange Guidelines, during the Stock Exchange trade, sale
and/or purchase orders for an amount of securities that will not
fall
short of the minimal amount to be determined by the Stock Exchange
Bylaws
and/or the Stock Exchange Guidelines in price spreads that will not
exceed
the maximum spread between such purchase orders and such sale orders
in
the Securities, all as shall be determined in the Stock Exchange
Bylaws
and the Stock Exchange Guidelines.
|
|
5.3
|
Without
derogating from the generality of the aforementioned in the above
section
5.2, as for this date and as long as it is not otherwise determined
by the
Stock Exchange, the Market Maker undertakes to act according to the
resolution of the board of directors of the Stock Exchange to the
extent
that it relates to and is suitable for the Security the subject of
this
agreement mutatis
mutandis.
A
copy of the resolution of the board of directors of the Stock Exchange
(update No. 39) is attached to this agreement as an inseparable part
thereof, and marked as "A"
(hereinafter: "Appendix
A").
|
|
5.4
|
Notwithstanding
the aforementioned in above sections 5.2 and 5.3, the Market Maker
undertakes to issue, subject to the Stock Exchange Bylaws and Stock
Exchange Guidelines, during the trade on the Stock Exchange, orders
for
the purchase and/or sale of an amount of Securities not to be less
than
the higher of: (a) a minimal amount to be set in the Stock Exchange
Bylaws
and Stock Exchange Guidelines or (b) a total sum of NIS 15,000, in
price
spreads not to exceed the lower of: (a) 4% between such purchase
orders
and such sale orders in securities or (b) the maximum spread between
such
purchase orders and such sale orders in securities as shall be set
in the
Stock Exchange Bylaws and Stock Exchange
Guidelines.
|
6. The
Term of this Agreement
|
6.1
|
The
Market Maker herby undertakes to act as a market maker in the Securities
for a minimum period of time not to be shorter than one year, as
set forth
in the Stock Exchange Bylaws and Stock Exchange Guidelines, and
consequently, the term of the agreement is hereby set between the
parties
for a period of one year, starting on the day on which the Market
Maker
receives the approval of the Stock Exchange to act according to this
agreement.
|
|
6.2
|
It
is agreed between the parties that if the Corporation is interested
in
continuing the contract with the Market Maker for an additional term
following the end of the term of the agreement set in the above section
6.1, it shall notify the Market Maker in writing at least 30 days
prior to
the termination of the term of the
agreement.
|
|
6.3
|
Notwithstanding
the aforementioned in the above sections 6.1 and 6.2, this agreement
shall
be deemed void on the accrual of one or more of the events detailed
hereinafter:
|
|
6.3.1
|
The
delisting of the Securities from trade on the Stock
Exchange.
|
|
6.3.2
|
The
cessation of the activity of the Market Maker by the Stock Exchange
for
any reason.
|
|
6.3.3
|
The
appointment of a receiver or a liquidator for the
Corporation.
|
|
6.4
|
Notwithstanding
the aforementioned in the above sections 6.1 and 6.2, it is hereby
agreed
that if any provisions are set in the Stock Exchange Bylaws and/or
the
Stock Exchange Guidelines and/or any other law, so that such provisions
harm any right of the Corporation, the Corporation shall then be
entitled
to bring this agreement to an immediate
termination.
|
-3-
7. Discounts
on Commissions for the "Market Maker"
|
7.1
|
The
Market Maker shall incur all costs of the commissions for execution
of
purchase and sale orders.
|
|
7.2
|
The
Corporation knows that the Stock Exchange and/or a Stock Exchange
Member
may offer the Market Maker discounts on the commissions charged for
the
actions carried out in the market making Account or exemption of
such
commissions, as shall be determined by the Stock Exchange Bylaws
and/or
the Stock Exchange Guidelines, and subject to the discretion of the
Stock
Exchange Member. It is hereby agreed that any refund and discount
on such
commissions, should they be granted, shall belong exclusively to
the
Market Maker.
|
8. The
Transaction Account
The
Market Maker shall conduct all the transactions the subject matter of this
agreement through a separate and special account, which shall be established
by
it and on its name for the activity of the Market Maker solely in connection
with the Securities.
|
9.
|
Borrowing
Securities for the Purpose of Conducting Activity of Market
Making
|
It
is
hereby agreed among the parties to this agreement that the market making in
the
Securities by the Market Maker shall not be carried out by way of borrowing
securities from the Corporation and/or the controlling persons in the
Corporation and/or any other entity, and the Market Maker hereby undertakes
that
the Securities through which the market making shall be carried out as set
forth
in this agreement shall be exclusively out of the Market Maker's Nostro
Account.
10. Consideration
|
10.1
|
In
consideration for the activity of the Market Maker as detailed in
this
agreement the Corporation shall pay the Market Maker for every month,
during which the Market Maker shall provide market making services
to the
Corporation, starting from the month in which this activity shall
be
approved by the Stock Exchange, a monthly fee payable in NIS, of
a sum
equal to US$1,500 plus all legally applicable value added tax
(hereinafter: the "Consideration").
The Consideration shall be calculated according to the official US
dollar
exchange rate as published by the Bank of Israel for the day of actual
payment, and shall be paid to the Market Maker on the fifth day of
each
calendar month in consideration of the previous month. The Corporation
shall pay the Consideration into the account of the Market Maker,
such
details shall be provided to the Corporation in advance in
writing.
|
|
10.2
|
The
Corporation shall pay the Market Maker the Consideration payments
in an
orderly and timely manner and without any connection to the volume
of the
Market Maker's activity, so long as it complies with all provisions
of the
Stock Exchange Bylaws, the Stock Exchange Guidelines and this
agreement.
|
|
10.3
|
For
the avoidance of doubt it is hereby clarified that the Corporation
shall
not incur any payment and/or fee and/or expense etc. in connection
with
the market making by the Market Maker as set forth in this
agreement.
|
-4-
11. Approvals
and Reports
|
11.1
|
The
agreement is subject to the approval of the Stock Exchange and shall
enter
into effect after receiving such approval of the Stock
Exchange.
|
|
11.2
|
Upon
the execution of this agreement and subject to the approval of its
institutions, the Corporation shall deliver an immediate report if
and to
the extent that such report is required pursuant to the laws which
apply
to the Corporation.
|
|
11.3
|
Promptly
after the execution of this agreement the Market Maker shall file
with the
Stock Exchange an application to act as a market maker in the Securities
as set forth in the Stock Exchange Bylaws and the Stock Exchange
Guidelines. The Market Maker shall transfer to the Corporation a
copy of
the said Stock Exchange approval upon receiving
it.
|
12. Applicability
of Provisions of Any Law
|
12.1
|
The
parties hereby confirm and agree that the provisions of the Securities
Act
and all regulations promulgated thereunder, as well as all the provisions
of any other law which applies to the Corporation shall apply to
this
agreement to the extent that they concern the provisions of this
agreement, the execution and the performance thereof. Furthermore,
the
provisions of the Stock Exchange Bylaws and the Stock Exchange Guidelines,
as they are in effect today and as shall be updated from time to
time,
shall apply to this agreement.
|
|
12.2
|
The
law applying to this agreement shall be Israeli law, and the exclusive
venue for any matter arising from and connected to this agreement
shall be
the court of jurisdiction in Tel
Aviv.
|
13. Modification
to the Terms of the Agreement
No
modification and/or addition to the provisions of this agreement shall have
effect unless it is made in writing, signed by the parties, and has received
all
necessary approvals pursuant to the provisions of any law. Amendments to law
and/or Stock Exchange Bylaws and/or Stock Exchange Guidelines shall
automatically apply to the terms and conditions of this agreement.
14. The
Rights and Obligations of the Market Maker
The
rights and obligations of the Market Maker pursuant to this agreement are not
transferable by the Market Maker and do not inure to any third parties.
15. Confidentiality
The
parties undertake to keep the details of this agreement confidential. This
undertaking shall not apply with respect to information which is required to
be
disclosed or advertised pursuant to law or to information which is public
knowledge, or has become public knowledge, not through the breach of this
agreement by the disclosing party.
16. Notices
The
addresses of the parties to this agreement are as specified in the preface
to
this agreement, or as amended by written notice to be delivered by registered
mail from one party to the other. Any notice, which a party to this agreement
shall send to the other party shall be deemed as if it was delivered by the
end
of 3 business days from its delivery, if it was delivered by registered mail;
by
the first business day after its transmission, if it was transmitted by
facsimile; and at the time of delivery, if delivered by hand, provided that
confirmation of delivery is given by the addressee.
-5-
In
witness thereof:
| /s/ Zion ▇▇▇▇▇ | /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
|
Zion ▇▇▇▇▇ |
▇▇▇ ▇▇▇▇▇▇▇▇▇ |
||
|
Name
Excellence
Nessuah
Stock
Exchange Services Ltd.
|
Xfone, Inc. |
-6-