Attached files
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EX-10.138 - NTS, INC. | ex10138.htm |
EX-10.137 - NTS, INC. | ex10137.htm |
EX-10.136 - NTS, INC. | ex10136.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): January 29, 2010 (January 29,
2010)
XFONE,
INC.
(Exact
name of registrant as specified in its charter)
Nevada
(State or
other jurisdiction of incorporation or organization)
Commission
File No. 001-32521
11-3618510
(I.R.S.
Employer Identification Number)
5307
W. Loop 289
Lubbock,
Texas 79414
(Address
of principal executive offices) (Zip Code)
806-771-5212
(Registrant’s
telephone number, including area code)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
-1-
Item
1.01 Entry
Into a Material Definitive Agreement.
On
January 29, 2010, Xfone, Inc. (“Xfone”) entered into an agreement (the
“Agreement”) with Abraham Keinan, a significant shareholder and Chairman of the
Board of Xfone (“Keinan”), and AMIT K LTD, a company registered in England &
Wales which is wholly owned and controlled by Keinan (“Buyer”), pursuant to
which Keinan, through Buyer, agreed to purchase from Xfone, and Xfone agreed to
sell, 100% of the entire issued share capital of Swiftnet Limited (“Swiftnet”),
Auracall Limited, Equitalk.co.uk Limited, Story Telecom, Inc. and Story Telecom
Limited (the “UK Subsidiaries”), which Xfone owns (the
“Transaction”).
Pursuant
to the Agreement, the consideration to be paid by Buyer and/or Keinan to Xfone
shall be $3,500,000, comprised of the following three components:
1. A release
by Iddo Keinan, the son of Keinan and an employee of Swiftnet (“Iddo”) and the
UK Subsidiaries, of Xfone and NTS Communications, Inc. from any obligations
under the loan agreement dated December 10, 2009, pursuant to which Iddo
extended to Swiftnet a loan of £860,044.58 ($1,397,873)(the “Loan Agreement”),
the Security Documents (as that term is defined in the Loan Agreement) and any
other ancillary documents thereof, including a release from the repayment of
Iddo's Loan (as that term is defined in the Agreement) and the related costs and
expenses specified in Schedule A of the Loan Agreement.
2. Full
redemption by Buyer and/or Keinan of the credit facility which Xfone had
obtained from Bank Leumi (UK) Plc of £150,000 ($243,802), thereby releasing
Xfone from its obligation to Bank Leumi (UK) Plc.
(Items 1
and 2 shall be collectively referred to as the “First Payment”).
3. Xfone
shall be entitled to receive an annual earn-out payment, commencing after the
accumulative EBITDA of the UK Subsidiaries, over the years beginning on the
consummation of the Transaction (the “Closing”), has reached an aggregate amount
equal to the First Payment and payable not later than March 31 of each
successive year, calculated as follows: the product of (A) twenty percent (20%)
and (B) the accumulative EBITDA of the UK Subsidiaries for the applicable year
(the “Earn-Out Payments”). The aggregate Earn-Out Payments shall be
equal to but shall not exceed $1,858,325 in the aggregate (the “Earn-Out
Consideration”). In the event that Buyer and/or Keinan sell the UK
Subsidiaries after the Closing and before the Earn-Out Consideration has been
paid to Xfone in full and therefore Buyer and/or Keinan cannot pay the Earn-Out
Payments out of the accumulative EBITDA of the UK Subsidiaries, Buyer and/or
Keinan shall immediately pay to Xfone, upon Xfone’s demand, in cash, $1,858,325,
less any amounts previously paid to Xfone as Earn-Out
Consideration.
In
connection with the Transaction, Guy Nissenson, Xfone’s President, Chief
Executive Officer and director (“Nissenson”), will resign his directorship of
all of the UK Subsidiaries, and Keinan will resign from his directorship of all
of Xfone’s subsidiaries, other than the UK Subsidiaries.
Xfone may
seek a valuation of the UK Subsidiaries and a fairness opinion in connection
with the Transaction, which would be submitted to Xfone’s Audit Committee and
Board of Directors for its review and consideration. The Closing of
the Transaction is subject to approval by Xfone’s Audit Committee and Board of
Directors, each of which shall be obtained not later than the earlier of (a) 60
calendar days from the date of execution of the Agreement, and (b) 10 calendar
days from the date of receipt of the later of the valuation or the fairness
opinion. The consummation is also subject to approval by the holders
of a majority of Xfone’s common stock entitled to vote, which shall be obtained
at a special meeting of Xfone’s stockholders to be held not later than July 31,
2010. In the event the approval of Xfone’s Audit Committee, Board of Directors
and/or shareholders is not obtained by the prescribed dates, the Agreement will
terminate.
The
foregoing summary of the Agreement and Transaction described above is qualified
in its entirety by reference to the definitive transaction document, a copy of
which is attached as Exhibit 10.136 to this Current Report on Form
8-K.
-2-
In
connection with the Agreement, Xfone and Keinan entered into a second agreement
on January 29, 2010 (the “Termination Agreement”), which, subject to and upon
the consummation of the Transaction, terminates a certain consulting agreement
entered into between Xfone and Keinan on March 28, 2007 (the “Consulting
Agreement”). Pursuant to the Termination Agreement, Keinan waives any
future monthly fees, beginning on the consummation of the Transaction, and the
right to an appropriate severance package which Keinan would have been entitled
to under the Consulting Agreement.
In
addition, pursuant to the Termination Agreement, upon the consummation of the
Transaction and for as long as Keinan remains a director of Xfone, Keinan shall
be deemed a non-independent director and shall not be entitled to any
compensation in connection with his directorship.
The
foregoing summary of the Termination Agreement and transaction described above
is qualified in its entirety by reference to the definitive transaction
document, a copy of which is attached as Exhibit 10.137 to this Current Report
on Form 8-K.
Item
8.01 Other Events
On
January 29, 2010, Keinan, Nissenson, and Campbeltown Business Ltd, an entity
owned and controlled by Nissenson and his family (“Campbeltown”) entered into an
agreement (the “Keinan/Nissenson/Campbeltown Agreement”). Pursuant to
the Keinan/Nissenson/Campbeltown Agreement, subject to and upon the consummation
of the Transaction, a certain Voting Agreement dated September 28, 2004 between
Keinan, Nissenson and Campbeltown will be terminated, and will be simultaneously
replaced with an irrevocable written appointment by Keinan of Nissenson, to act
as Keinan’s proxy in respect of all shares of Xfone’s common stock that Keinan
owns or holds now or in the future. The proxy is irrevocable, and will remain in
effect for as long as Nissenson is the record or beneficial holder of one
hundred thousand (100,000) or more shares of Xfone’s common stock or is a
director or an executive officer of Xfone.
Additionally,
the Keinan/Nissenson/Campbeltown Agreement provides that, (i) subject to and
upon the consummation of the Transaction, and for as long as Nissenson has
voting power over any shares of Xfone's common stock, in any manner whatsoever,
and Keinan is a record or beneficial holder of at least 1,000,000 shares of
Xfone’s common stock, Nissenson undertakes to vote “FOR” the
election/re-election of Keinan as a director of Xfone at any shareholder meeting
at which Keinan is standing for election/re-election, and (ii) in the event that
Keinan owns less than 1,000,000 shares of Xfone’s common stock (excluding
options to purchase shares of common stock), Keinan will resign as a director of
Xfone.
The foregoing
summary of the Keinan/Nissenson/Campbeltown
Agreement and transactions described above is qualified in its entirety by
reference to the definitive transaction document, a copy of which is attached as
Exhibit 10.138 to this Current Report on Form 8-K.
-3-
Item
9.01
Financial Statements and Exhibits
(a)
Not applicable.
(b)
Not applicable.
(c)
Not applicable.
(d) Exhibits.
Exhibit
No.
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Description
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-4-
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Xfone,
Inc.
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Date: January
29, 2010
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By:
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/s/
Guy Nissenson
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Guy
Nissenson
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President,
Chief Executive Officer and Director
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-5-
INDEX
TO EXHIBITS
Exhibit
No.
|
Description
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-6-