ex10130.htm


    
      Exhibit
10.130

       

      [Free
translation from Hebrew]

    

     

    Market
Making Agreement

    


    Entered
into and signed in Petach Tikva on December 24, 2008

    


    Between:

    


    Harel
Finance Trade & Securities Ltd.

    P.C.
513992115

    of 7
Jabotinski St., Ramat Gan

    (hereinafter:
the “Market
Maker”)

    of the first
part;

    


    And
between:

    


    Xfone,
Inc.

    Co. No.:
C23688-2000

    whose
address for the purpose of this Agreement will be

    P.O. Box
7616, Petah Tikva 49170

    (hereinafter:
the “Company”)

    of the second
part;

    


    
      	
              Whereas

            	
              the
      Market Maker is a member of the Tel Aviv Stock Exchange Ltd. (hereinafter:
      “TASE”);
      and

            


    

    


    
      	
              Whereas

            	
              the
      Company listed its shares on TASE in the framework of a “dual listing”
      pursuant to the provisions of Chapter E3 of the Securities Law, 5728-1968
      (hereinafter: the “Securities Law”);
      and

            


    

    


    
      	
              Whereas

            	
              the
      Company wishes to increase the level of negotiability and improve the
      liquidity of the Securities Contemplated in the Agreement, according to
      the definition of this term below, inter alia, through
      engagement with the Market Maker as specified in this Agreement;
      and

            


    

    


    
      	
              Whereas

            	
              the
      Market Maker represents that it has received TASE’s approval to act as a
      “market maker” and that it has the knowhow and ability to act as a market
      maker and that it is able to provide the Company with its services as
      specified in this Agreement; and

            


    

    


    
      	
              Whereas

            	
              the
      Company approached the Market Maker and requested that the Market Maker
      provide market making services thereto for the Securities Contemplated in
      the Agreement, according to the definition of this term below, as
      specified in this Agreement, and the Market Maker agreed to provide the
      Company with market making services for the said securities;
      and

            


    

    


    
      	
              Whereas

            	
              the
      Market Maker undertook to act to receive TASE’s approval for activity as a
      “market maker” pursuant to the provisions of this Agreement;
      and

            


    

    


    
      
        
        

      

      
        -1-

        
          

        

      

      
        
        

      

      [Free translation from
Hebrew]

       

    

    
      	
              Whereas

            	
              the
      Parties wish to regulate their engagement as specified in this
      Agreement;

            


    

    


    Therefore
it has been represented, agreed and stipulated between the Parties as
follows:

     

    
      	
              1.

            	
              Preamble,
      Interpretation and Annexes

            


    

     

    
      	
               
      

            	
              1.1

            	
              The
      preamble to this Agreement and the annexes hereto constitute an integral
      part hereof.

            


    

     

    
      	
               
      

            	
              1.2

            	
              The
      headings of the sections in this Agreement are provided for the purpose of
      convenience and shall not be used for interpretation
    purposes.

            


    

     

    
      	
               
      

            	
              1.3

            	
              All
      of the terms included in this Agreement shall bear the meaning imparted
      thereto in the Securities Law and/or in the TASE bylaws and/or in its
      directives and/or in resolutions of the board of directors of TASE
      (hereinafter: “TASE’s
      Bylaws and Directives”).

            


    

     

    
      	
               
      

            	
              1.4

            	
              It
      is hereby agreed that in any event of a discrepancy between the provisions
      of this Agreement and the provisions of the Securities Law and/or the
      provisions of TASE’s Bylaws and Directives, the provisions of the
      Securities Law and/or the provisions of TASE’s Bylaws and Directives will
      prevail over the provisions of this
Agreement.

            


    

     

    
      	
              2.

            	
              Conditions
      Precedent

            


    

     

    All of
the provisions of this Agreement are subject to fulfillment of all of the
conditions precedent specified below within 15 days from the date
of execution of this Agreement. The conditions precedent are as
follows:

     

    
      	
               
      

            	
              2.1

            	
              Receipt
      of the approval of TASE for the appointment of the Market Maker as market
      maker for the Securities Contemplated in the Agreement, according to the
      definition of this term below.

            


    

     

    
      	
              3.

            	
              The
      Market Maker’s
Representations

            


    

     

    The
Market Maker hereby represents that:

     

    
      	
               
      

            	
              3.1

            	
              It
      is a member of TASE.

            


    

     

    
      	
               
      

            	
              3.2

            	
              It
      has received the approval of TASE to act as market
  maker.

            


    

     

    
      	
               
      

            	
              3.3

            	
              It
      has the knowhow and ability to act as market maker and is able to provide
      the Company with the market making services as specified in this
      Agreement.

            


    

     

    
      	
               
      

            	
              3.4

            	
              All
      of the approvals required according to the incorporation documents and the
      provisions of any law for its engagement according to the terms and
      conditions of this Agreement have been received and there is no legal or
      other impediment to its engagement according to the terms and conditions
      of this Agreement.

            


    

    
      


      
        
          
          

        

        
          -2-

          
            

          

        

        
          
          

        

        [Free translation from
Hebrew]

         

      

    

    
      	
              4.

            	
              The
      Company’s Representations

            


    

     

    
      	
               
      

            	
              4.1

            	
              The
      Company hereby represents that it is a company which was incorporated in
      the State of Nevada in the U.S.A. whose ordinary shares are listed on the
      NYSE Alternext US stock exchange and
TASE.

            


    

     

    
      	
               
      

            	
              4.2

            	
              The
      Company hereby represents that there is no legal or other impediment to
      its engagement according to the terms and conditions of this
      Agreement.

            


    

     

    
      	
               
      

            	
              4.3

            	
              The
      Company’s securities specified below are traded on TASE as of the date of
      execution of this Agreement:

            


    

     

    
      	
              Type
      of Securities

            	
              Quantity
      Issued

            
	
              Common
      stock

            	
              18,376,075

            
	
              Series
      A bonds

            	 
      


    

     

    
      	
               
      

            	
              4.4

            	
              The
      Company hereby represents that to the best of its knowledge, the
      interested parties thereof hold its securities as specified
      below:

            


    

     

    
      	
              Name
      of Interested Party

            	
              Type
      of Securities

            	
              Quantity
      Held

            
	
              Avraham
      Keinan

            	
              Common
      stock

            	
              3,208,000

            
	
              Avraham
      Keinan

            	
              Non-negotiable
      options

            	
              1,500,000

            
	
              Guy
      Nissenson

            	
              Common
      stock

            	
              11,500

            
	
              Guy
      Nissenson

            	
              Non-negotiable
      options

            	
              1,500,000

            
	
              Gagnon
      Securities LLC

            	
              Common
      stock

            	
              3,206,450

            
	
              Campbeltown
      Business Ltd.

            	
              Common
      stock

            	
              1,203,500

            
	
              Richard
      L. Scott

            	
              Common
      stock

            	
              2,643,121

            
	
              Richard
      L. Scott

            	
              Non-negotiable
      options

            	
              800,000

            
	
              Eyal
      Harish

            	
              Non-negotiable
      options

            	
              75,000

            
	
              Shemer
      S. Shwartz

            	
              Common
      stock

            	
              2,000

            
	
              Shemer
      S. Shwartz

            	
              Non-negotiable
      options

            	
              75,000

            
	
              Aviyahu
      Ben Hurin

            	
              Non-negotiable
      options

            	
              25,000

            
	
              Yitzhak
      Almog

            	
              Non-negotiable
      options

            	
              25,000

            
	
              Morris
      Mansur

            	
              Non-negotiable
      options

            	
              20,000

            
	
              Israel
      Singer

            	
              Non-negotiable
      options

            	
              20,000

            


    

     

    
      	
               
      

            	
              4.5

            	
              Each
      party will provide the other with any report that shall be issued by TASE
      regarding activity in connection with this Agreement in accordance with
      TASE’s Bylaws and Directives, immediately upon issuance of the report by
      TASE and receipt thereof by either of the
  Parties.

            


    

    
      


      
        
          
          

        

        
          -3-

          
            

          

        

        
          
          

        

        [Free translation from
Hebrew]

      

    

     

    
      	
               
      

            	
              4.6

            	
              The
      Company undertakes to notify the Market Maker of any matter which is
      subject to a reporting duty pursuant to Section 36 of the Securities Law,
      without derogating from its other undertakings in this
      Agreement.

            


    

     

    
      	
              5.

            	
              The
      Appointment

            


    

     

    The
Company hereby appoints the Market Maker, commencing from the seventh trading
day after the first date on which all of the conditions precedent specified in
Section 2 above shall be fulfilled (hereinafter: the “Effective Date”), to serve,
during the term of the Agreement, as market maker for the securities specified
below:

     

    
      	
               
      

            	
              5.1

            	
              The
      name of the stock:

            	
              Xfone

            


    

     

    
      	
               
      

            	
              5.2

            	
              Number
      thereof:

            	
              1098169

            


    

     

    
      	
               
      

            	
              5.3

            	
              Symbol:

            	
              XFN

            


    

     

    (Hereinabove
and hereinbelow: the “Securities Contemplated in the
Agreement”).

     

    
      	
              6.

            	
              Market
      Making Services

            


    

     

    
      	
               
      

            	
              6.1

            	
              The
      Market Maker undertakes that throughout the term of the Agreement, it will
      act as market maker and will submit for performance on TASE market making
      orders as required, and will perform anything that is required of a market
      maker pursuant to the provisions of the law in general, and to TASE’s
      Bylaws and Directives, as being from time to time, specifically. The
      market making will be performed in a special account of the Market Maker,
      which shall be designated for the market making activity for the
      Securities Contemplated in the
Agreement.

            


    

     

    
      	
               
      

            	
              6.2

            	
              The
      Market Maker undertakes to immediately notify the Company of any event in
      which TASE shall revoke its approval for the Market Maker to act as market
      maker.

            


    

     

    
      	
              7.

            	
              Fee

            


    

     

    
      	
               
      

            	
              7.1

            	
              The
      Market Maker will be entitled to receive from the Company, in respect of
      the market making services as stated in this Agreement, throughout the
      term of the Agreement, monthly consideration in the sum of NIS 5,000 (five
      thousand New Israeli Shekel) (hereinafter: the “Consideration”).

            


    

     

    
      	
               
      

            	
              7.2

            	
              The
      Company will pay the Market Maker the Consideration at net 30
      terms.

            


    

     

    
      	
               
      

            	
              7.3

            	
              For
      the avoidance of doubt, it is hereby clarified that the Company will bear
      no payment and/or fee and/or expense in connection with the market making
      by the Market Maker as set forth in this
  Agreement.

            


    

    
      


      
        
          
          

        

        
          -4-

          
            

          

        

        
          
          

        

        [Free translation from
Hebrew]

      

    

     

    
      	
              8.

            	
              Term
      of the Agreement

            


    

     

    
      	
               
      

            	
              8.1

            	
              This
      Agreement is for a period of one year commencing from the Effective Date
      (hereinafter: the “Initial
      Period”).

            


    

     

    
      	
               
      

            	
              8.2

            	
              Upon
      expiration of the Initial Period, the Agreement will be extended
      automatically by additional periods of 12 months each (hereinafter: the
      “Additional
      Periods”).

            


    

     

    
      	
               
      

            	
              8.3

            	
              Subject
      to the provisions of TASE’s Bylaws and Directives, the Company will be
      entitled to terminate the Agreement at any time during the Additional
      Periods, for any reason, by prior written notice, to be given at least 45
      days in advance, provided that TASE’s consent shall have been received to
      the termination of the market making by the Market Maker for the
      Securities Contemplated in the Agreement, and in a manner that will not
      prevent the Market Maker from continuing to serve as market maker for
      other securities and/or other
companies.

            


    

     

    
      	
               
      

            	
              8.4

            	
              Subject
      to the provisions of TASE’s Bylaws and Directives, the Market Maker will
      be entitled to terminate the Agreement at any time during the Additional
      Periods for any reason whatsoever, by prior written notice to be given at
      least 45 days in advance, provided that TASE’s consent shall have been
      received to the termination of the market making by the Market Maker for
      the Securities Contemplated in the Agreement, and in a manner that will
      not prevent the Market Maker from continuing to serve as market maker for
      other securities and/or other
companies.

            


    

     

    
      	
               
      

            	
              8.5

            	
              The
      provisions of this Section 8 notwithstanding, and subject to TASE’s Bylaws
      and Directives, the Market Maker may terminate the Agreement, at any time,
      in the event that a status change shall occur in the negotiability of the
      Company’s stock according to TASE’s decision – by giving written notice.
      In such a case as stated in this section, the Market Maker will specify in
      its notice whether the termination is with respect to all of the
      transaction shares or in respect of part thereof (a reduction in the
      quantity of the transaction
shares).

            


    

     

    
      	
               
      

            	
              8.6

            	
              The
      aforesaid in this Section 8 notwithstanding, it is hereby agreed that if
      any provisions shall be determined in the TASE bylaws and/or the TASE
      directives and/or in any other law, which shall prejudice any of the
      rights of the Company and/or the Market Maker, then the Company / the
      Market Maker will be entitled to terminate this Agreement
      immediately.

            


    

     

    
      	
              9.

            	
              Liability

            


    

     

    
      	
               
      

            	
              9.1

            	
              The
      Company hereby waives any claim and/or demand and/or lawsuit against the
      Market Maker with respect to the effect of the market making on the price
      of the Securities Contemplated in this Agreement and/or in respect of any
      damage and/or loss and/or cost that shall be caused to the Company due to
      the provision of the services according to this Agreement. The aforesaid
      notwithstanding, the Company will not be barred from claiming against the
      Market Maker in respect of any damage that shall be caused to the Company
      in the event that the Market Maker shall commit a fundamental breach of
      the Agreement and/or shall be negligent in the performance of its
      undertakings according to this Agreement, all without prejudice to any
      remedy that is available to the Company pursuant to any
    law.

            


    

    
      


      
        
          
          

        

        
          -5-

          
            

          

        

        
          
          

        

        [Free translation from
Hebrew]

      

    

     

    
      	
               
      

            	
              9.2

            	
              The
      Market Maker represents that it is aware and agrees that the Company is
      not liable in any way for the market making actions by the Market Maker,
      and that the Market Maker will not be entitled to any compensation or
      indemnification from the Company in respect of the market making for the
      Securities Contemplated in the Agreement and/or in respect of any loss
      and/or damage that shall be caused to the Market Maker as a result of its
      engagement in this Agreement and/or as a result of the market making for
      the Securities Contemplated in the
Agreement.

            


    

     

    
      	
              10.

            	
              Miscellaneous

            


    

     

    
      	
               
      

            	
              10.1

            	
              This
      Agreement, including the annexes hereto, contains, embodies, incorporates
      and expresses all of the agreed terms, promises and agreements, written or
      oral, on the matters specified herein. Any undertakings or representations
      on the subject matter of this Agreement which were given or made by the
      Parties prior to the execution of this Agreement and which were not
      explicitly expressed herein shall neither add to the obligations and
      rights set forth in this Agreement, nor derogate therefrom nor modify the
      same, and the Parties will not be bound thereby commencing from the date
      of this Agreement.

            


    

     

    
      	
               
      

            	
              10.2

            	
              No
      conduct on the part of either of the Parties shall be deemed as a waiver
      of any of its rights according to this Agreement or pursuant to any law,
      or as a waiver of or consent on its part to any breach or non-fulfillment
      of any condition, unless the waiver, consent, postponement, modification,
      cancellation or addition shall have been made explicitly and in
      writing.

            


    

     

    
      	
               
      

            	
              10.3

            	
              Any
      notice of any of the other parties in connection with this Agreement shall
      be delivered in writing and shall be sent to the addressee by personal
      delivery or by registered mail to its address as specified at the start of
      this Agreement, and shall be deemed as having been delivered to the
      addressee on the date of delivery thereof by personal delivery or 4 days
      after the date of dispatch thereof by registered mail, as aforesaid, all
      as the case may be.

            


    

     

    
      	
               
      

            	
              10.4

            	
              Any
      modification, amendment or waiver in connection with this Agreement will
      be valid according to a written document only and will be limited to the
      matter in respect of which it was made from the outset. No waiver in any
      case shall constitute a precedent for any other case. No refrainment from
      performance of an action or laches in the
      performance thereof shall be deemed as a waiver nor prejudice the rights
      or undertakings of either of the Parties in connection with such
      action.

            


    

    
      


      
        
          
          

        

        
          -6-

          
            

          

        

        
          
          

        

        [Free translation from
Hebrew]

         

      

    

    
      	
               
      

            	
              10.5

            	
              The
      law of the State of Israel will govern the provisions of this Agreement.
      The courts within the area of jurisdiction of the Tel Aviv-Jaffa District
      Court will have sole and exclusive jurisdiction over any matter that is
      connected with and/or derives from this
  Agreement.

            


    

     

    
      	
               
      

            	
              10.6

            	
              The
      Parties will be entitled to disclose the contents of this Agreement,
      insofar as they are required to do so pursuant to any law, including
      immediate reports to the Securities Authority, TASE etc., after
      coordination of the language of the foregoing reports and/or notices
      between the Parties.

            


    

     

     

    In
witness whereof, the parties have hereto set their hands:

    


    


    
      	 
      	 
      	 
      
	
              The
      Market Maker

            	 
      	
              The
      Company

            


    

     

    


    
      
        
        

      

      
        -7-