x
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Nevada
|
11-3618510
|
|
(State or other jurisdiction of
incorporation or organization)
|
(I.R.S. Employer
Identification No.)
|
Large accelerated filer o | Accelerated filer o |
Non-accelerated filer o | Smaller reporting company x |
Item 1:
|
Xfone, Inc. and Subsidiaries
|
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
|
June 30, 2010
|
CONTENTS
|
PAGE
|
5
|
|
7
|
|
8
|
|
10
|
Xfone, Inc. and Subsidiaries
|
||||||||
CONDENSED CONSOLIDATED BALANCE SHEETS
|
||||||||
June 30,
|
December 31,
|
|||||||
2010
|
2009
|
|||||||
Unaudited
|
||||||||
CURRENT ASSETS:
|
||||||||
Cash
|
$
|
3,760,271
|
$
|
2,467,028
|
||||
Accounts receivable, net
|
2,677,315
|
2,855,136
|
||||||
Prepaid expenses and other receivables
|
2,379,533
|
2,423,402
|
||||||
Deferred taxes
|
456,315
|
569,152
|
||||||
Inventory
|
196,585
|
199,392
|
||||||
Current assets of discontinued operations in the United Kingdom
|
2,982,342
|
2,932,345
|
||||||
Current assets of discontinued operations in Israel
|
2,253,745
|
2,164,287
|
||||||
Total current assets
|
14,706,106
|
13,610,742
|
||||||
BONDS ISSUANCE COSTS , NET
|
1,577,607
|
1,725,705
|
||||||
OTHER LONG TERM ASSETS
|
1,302,209
|
929,417
|
||||||
FIXED ASSETS, NET
|
54,568,985
|
51,546,695
|
||||||
OTHER ASSETS, NET
|
1,550,593
|
1,932,771
|
||||||
ASSETS OF DISCONTINUED OPERATIONS IN THE UNITED KINGDOM
|
5,772,480
|
6,719,663
|
||||||
ASSETS OF DISCONTINUED OPERATIONS IN ISRAEL
|
1,780,715
|
2,010,289
|
||||||
Total assets
|
$
|
81,258,695
|
$
|
78,475,282
|
||||
Xfone, Inc. and Subsidiaries
|
CONDENSED CONSOLIDATED BALANCE SHEETS
|
June 30,
|
December 31,
|
|||||||
2010
|
2009
|
|||||||
Unaudited
|
||||||||
CURRENT LIABILITIES:
|
||||||||
Short-term bank credit and current maturities of notes payable
|
$
|
4,114,313
|
$
|
7,029,842
|
||||
Trade payables
|
6,216,342
|
7,120,474
|
||||||
Other liabilities and accrued expenses
|
3,618,295
|
3,922,741
|
||||||
Current maturities of obligations under capital leases
|
230,868
|
253,634
|
||||||
Current maturities of bonds
|
3,546,808
|
3,637,146
|
||||||
Current liabilities of discontinued operations in the United Kingdom
|
4,162,608
|
4,131,849
|
||||||
Current liabilities of discontinued operations in Israel
|
2,268,370
|
2,906,259
|
||||||
Total current liabilities
|
24,157,604
|
29,001,945
|
||||||
DEFERRED TAXES, NET
|
3,259,389
|
3,733,929
|
||||||
NOTES PAYABLE FROM THE UNITED STATES DEPARTMENT OF AGRICULTURE, NET OF CURRENT MATURITIES
|
6,785,799
|
5,311,032
|
||||||
NOTES PAYABLE, NET OF CURRENT MATURITIES
|
2,805,900
|
43,012
|
||||||
BONDS PAYABLES , NET OF CURRENT MATURITIES
|
17,169,245
|
17,510,812
|
||||||
OBLIGATIONS UNDER CAPITAL LEASES , NET OF CURRENT MATURITIES
|
179,824
|
256,790
|
||||||
OTHER LONG TERM LIABILITIES
|
716,646
|
293,953
|
||||||
SEVERANCE PAY
|
57,753
|
50,268
|
||||||
LIABILITIES OF DISCONTINUED OPERATIONS IN THE UNITED KINGDOM
|
160,404
|
172,809
|
||||||
LIABILITIES OF DISCONTINUED OPERATIONS IN ISRAEL
|
500,138
|
418,039
|
||||||
Total liabilities
|
55,792,702
|
56,792,589
|
||||||
COMMITMENTS AND CONTINGENT LIABILITIES
|
||||||||
SHAREHOLDERS' EQUITY:
|
||||||||
Common stock of $0.001 par value: 75,000,000 shares authorized; 21,119,488 and 18,376,075 issued and outstanding at June 30,2010 and December 31, 2009
|
21,119
|
18,376
|
||||||
Additional paid-in capital
|
47,835,370
|
43,362,217
|
||||||
Foreign currency translation adjustment
|
(2,991,690
|
)
|
(2,860,983
|
)
|
||||
Retained earnings
|
(19,797,950)
|
)
|
(19,072,582
|
)
|
||||
Total shareholders' equity
|
25,066,849
|
21,447,028
|
||||||
Non – Controlling interest
|
399,144
|
235,665
|
||||||
Total equity
|
25,465,993
|
21,682,693
|
||||||
Total liabilities and shareholders' equity
|
$
|
81,258,695
|
$
|
78,475,282
|
Xfone, Inc. and Subsidiaries
|
CONDENSED CONSOLIDATED STATEMENTS OF OPERATION
|
(Unaudited)
|
Three months ended
|
Six months ended
|
|||||||||||||||
June 30,
|
June 30,
|
|||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||
Revenues
|
$
|
14,429,559
|
$
|
15,455,409
|
$
|
28,986,997
|
$
|
31,105,422
|
||||||||
Cost of revenues
|
7,592,359
|
8,408,974
|
15,296,524
|
17,064,790
|
||||||||||||
Gross profit
|
6,837,200
|
7,046,435
|
13,690,473
|
14,040,632
|
||||||||||||
Operating expenses:
|
||||||||||||||||
Marketing and selling
|
1,072,906
|
1,134,071
|
2,180,798
|
2,324,805
|
||||||||||||
General and administrative
|
5,251,349
|
5,057,631
|
10,683,349
|
10,486,731
|
||||||||||||
Total operating expenses
|
6,324,255
|
6,191,702
|
12,864,147
|
12,811,536
|
||||||||||||
Operating profit
|
512,945
|
854,733
|
826,326
|
1,229,096
|
||||||||||||
Financing expense, net
|
(162,390
|
)
|
(2,543,326
|
)
|
(1,257,116
|
)
|
(997,294
|
)
|
||||||||
Other expenses
|
(148,091
|
)
|
(94,653
|
)
|
(293,336)
|
(188,781
|
)
|
|||||||||
Income (loss) from continued operations before taxes and non-controlling interest
|
202,464
|
(1,783,246
|
)
|
(724,126
|
)
|
43,021
|
||||||||||
Income tax benefit (expense)
|
(69,613
|
)
|
289,676
|
252,616
|
319,959
|
|||||||||||
Net Income (loss) from continued operations
|
132,851
|
(1,493,570
|
)
|
(471,510)
|
362,980
|
|||||||||||
Income (loss) from discontinued operations in the United Kingdom and Israel, before taxes
|
354,539
|
(360,841
|
)
|
94,876
|
147,209
|
|||||||||||
Income tax expense on discontinued operations in the United Kingdom and Israel
|
(92,161)
|
(147,482
|
)
|
(185,255
|
)
|
(174,167
|
)
|
|||||||||
Net income (loss)
|
395,229
|
(2,001,893
|
)
|
(561,889
|
)
|
336,022
|
||||||||||
Less: Net income (loss) attributed to non-controlling interest (related to discontinued operations)
|
(66,339
|
)
|
138,716
|
(163,479
|
)
|
119,162
|
||||||||||
Net income (loss) attributed to shareholders
|
$
|
328,890
|
$
|
(1,863,177
|
)
|
$
|
(725,368
|
)
|
$
|
455,184
|
||||||
Basic income (loss) per share:
|
||||||||||||||||
Income (loss) from continued operations
|
$
|
0.006
|
$
|
(0.081
|
)
|
$
|
(0.024
|
)
|
$
|
0.020
|
||||||
Income (loss) from discontinued operations
|
0.010
|
(0.020
|
)
|
(0.012
|
)
|
0.005
|
||||||||||
Basic and diluted
|
$
|
0.016
|
$
|
(0.101
|
)
|
$
|
(0.036
|
)
|
$
|
0.025
|
||||||
Diluted income (loss) per share:
|
||||||||||||||||
Income (loss) from continued operations
|
$
|
0.006
|
$
|
(0.081
|
)
|
$
|
(0.024
|
)
|
$
|
0.020
|
||||||
Income (loss) from discontinued operations
|
0.009
|
(0.020
|
)
|
(0.012
|
)
|
0.005
|
||||||||||
Basic and diluted
|
$
|
0.015
|
$
|
(0.101
|
)
|
$
|
(0.036
|
)
|
$
|
0.025
|
||||||
Basic weighted average number of shares outstanding:
|
21,119,488
|
18,376,075
|
19,877,000
|
18,376,075
|
||||||||||||
Diluted weighted average number of shares outstanding:
|
21,387,872
|
18,376,075
|
19,877,000
|
18,376,075
|
Xfone, Inc. and Subsidiaries
|
||||||||
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
|
||||||||
(Unaudited)
|
||||||||
Six Months Ended
|
||||||||
June 30 ,
|
||||||||
2010
|
2009
|
|||||||
Cash flow from operating activities:
|
||||||||
Net income (loss)
|
$
|
(561,889
|
)
|
$
|
336,022
|
|||
Adjustments required to reconcile net income to net cash provided by operating activities:
|
||||||||
Depreciation and amortization
|
2,257,300
|
1,922,084
|
||||||
Compensation in connection with the issuance of warrants and options
|
451,383
|
304,034
|
||||||
Impairment of goodwill of discontinued operations
|
800,000
|
-
|
||||||
Accrued interest and exchange rate changes on outstanding Bonds
|
(417,102
|
)
|
(185,036
|
)
|
||||
Decrease (increase) in account receivables
|
338,524
|
1,910,081
|
||||||
Bad debt provision
|
98,916
|
(14,963
|
)
|
|||||
Decrease (increase) in inventories
|
2,807
|
5,103
|
||||||
Decrease (increase) in long term receivables
|
(367,757
|
)
|
73,663
|
|||||
Decrease (increase) in bonds issuance expenses, net
|
148,098
|
10,736
|
||||||
Decrease (increase) in prepaid expenses and other receivables
|
(675,940
|
)
|
744,498
|
|||||
Increase (decrease) in trade payables
|
(711,647
|
)
|
(975,943
|
)
|
||||
Increase (decrease) in other liabilities and accrued expenses
|
(56,793
|
)
|
(1,683,590
|
)
|
||||
Increase (decrease) in severance pay
|
16,015
|
71,486
|
||||||
Increase (decrease) in other long term liabilities
|
429,419
|
(108,842
|
)
|
|||||
Deferred tax provision
|
(410,813
|
)
|
(255,419
|
)
|
||||
Net cash provided by operating activities
|
1,340,521
|
2,153,914
|
||||||
Cash flow from investing activities:
|
||||||||
Purchase of equipment
|
(2,143,948
|
)
|
(2,660,221
|
)
|
||||
Purchase of equipment for the project under the United States Department of Agriculture
|
(2,457,290
|
)
|
(1,530,252
|
)
|
||||
Net cash used in investing activities
|
(4,601,238
|
)
|
(4,190,473
|
)
|
Xfone, Inc. and Subsidiaries
|
||||||||
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)
|
||||||||
(Unaudited)
|
||||||||
Six Months Ended
|
||||||||
June 30 ,
|
||||||||
2010
|
2009
|
|||||||
Cash flow from financing activities:
|
||||||||
Repayment of long term loans from banks and others
|
$
|
(380,121
|
)
|
$
|
(2,112,874
|
)
|
||
Repayment of capital lease obligation
|
(149,789
|
)
|
(225,146
|
)
|
||||
Repayment of long term loans from United States Department of Agriculture
|
(196,688
|
)
|
-
|
|||||
Proceeds from exercise of options
|
75,753
|
-
|
||||||
Proceeds from long term loans
|
2,837,298
|
-
|
||||||
Increase (decrease) in short-term bank credit, net
|
(3,723,220
|
)
|
719,695
|
|||||
Proceeds from long term loans from banks
|
406,835
|
1,396,698
|
||||||
Proceeds from long term loans from the United States Department of Agriculture
|
1,766,564
|
2,662,585
|
||||||
Proceeds from issuance of shares and detachable warrants, net of issuance expenses
|
3,948,760
|
-
|
||||||
Net cash provided by (used in) financing activities
|
4,585,392
|
2,440,958
|
||||||
Effect of exchange rate changes on cash and cash equivalents
|
7,373
|
12,653
|
||||||
Net increase (decrease) in cash and cash equivalents
|
1,332,048
|
417,052
|
||||||
Cash and cash equivalents at the beginning of the period
|
2,819,393
|
3,078,474
|
||||||
Cash and cash equivalents at the end of the period (*)
|
$
|
4,151,441
|
$
|
3,495,526
|
||||
Supplemental disclosure of cash flows activities:
|
||||||||
Cash paid for:
|
||||||||
Interest
|
$ | 1,284,270 | $ | 1,239,337 | ||||
Taxes
|
$ | 402,125 | $ | 200,005 | ||||
Xfone, Inc. and Subsidiaries
|
JUNE 30, 2010
(Unaudited)
|
A.
|
Xfone, Inc. ("Xfone" or "the Company") was incorporated in Nevada, U.S.A. in September 2000. The Company is a holding and managing company providing voice, video and data telecommunications services, including: local, long distance and international telephony services; video; prepaid and postpaid calling cards; cellular services; Internet services; messaging services (Email/Fax Broadcast, Email2Fax and Cyber-Number); and reselling opportunities, with operations in the United States, United Kingdom and Israel. Xfone serves customers worldwide.
|
●
|
NTS Communications, Inc. ("NTS") and its seven wholly owned subsidiaries, NTS Construction Company, Garey M. Wallace Company, Inc., Midcom of Arizona, Inc., Communications Brokers Inc., NTS Telephone Company, LLC, NTS Management Company, LLC and PRIDE Network, Inc. - wholly owned U.S. subsidiary.
|
●
|
Xfone USA, Inc. and its two wholly owned subsidiaries, eXpeTel Communications, Inc. and Gulf Coast Utilities, Inc. (collectively, "Xfone USA") - wholly owned U.S. subsidiary.
|
●
|
Swiftnet Limited ("Swiftnet") - wholly owned U.K. subsidiary.
|
●
|
Equitalk.co.uk Limited ("Equitalk") - wholly owned U.K. subsidiary.
|
●
|
Auracall Limited ("Auracall") - wholly owned U.K. subsidiary of Swiftnet.
|
●
|
Story Telecom, Inc. and its wholly owned U.K. subsidiary, Story Telecom Limited (collectively, "Story Telecom") - wholly owned U.S. subsidiary.
|
●
|
Xfone 018 Ltd. ("Xfone 018") - majority owned Israeli subsidiary in which Xfone holds a 69% ownership share.
|
A.
|
Principles of Consolidation and Basis of Financial Statement Presentation
|
B.
|
Foreign Currency Translation
|
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
C.
|
Accounts Receivable
|
D.
|
Other Intangible Assets
|
E.
|
Earnings Per Share
|
F.
|
Stock-Based Compensation
|
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
G.
|
Reclassification
|
H.
|
Basis of Presentation
|
I.
|
Income Taxes
|
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
J.
|
Derivative Instruments
|
K.
|
Recent Accounting Pronouncements
|
Fair Value Measurements and Disclosures. In January 2010, the FASB issued “Fair Value Measurements and Disclosures—Improving Disclosures about Fair Value Measurements” (Accounting Standards Update (ASU) 2010-06), which requires new disclosures and explanations for transfers of financial assets and liabilities between certain levels in the fair value hierarchy. ASU 2010-06 also clarifies that fair value measurement disclosures are required for each class of financial asset and liability, which may be a subset of a caption in the consolidated balance sheets, and those disclosures should include a discussion of inputs and valuation techniques. For financial assets and liabilities subject to lowest-measurements, ASU 2010-06, further requires that the Company separately present purchases, sales, issuances, and settlements instead of netting these changes. With respect to matters other than lowest-level measurements, the Company adopted ASU 2010-06 beginning with the quarter ended March 31, 2010 with the remaining disclosure requirements becoming effective for fiscal years and interim periods beginning on or after December 15, 2010 (i.e., the quarter ending March 31, 2011, for the Company). Adoption of this standard did not have any material impact on the Company's financial statements.
|
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
A.
|
Operations in the U.K.
|
1.
|
A release of the Company from the repayment of the loan from Iddo Keinan, the son of Mr. Keinan and an employee of Swiftnet dated December 10, 2009, pursuant to which Iddo Keinan extended to Swiftnet a loan of £860,044 ($1,292,353);.
|
2.
|
A release of the Company from its obligation to Bank Leumi (UK) Plc. for of £150,000 ($228,375), thereby releasing the Company from its obligation to Bank Leumi (UK) Plc.; and
|
3.
|
An annual earn-out payment over the following years beginning on the consummation of the Transaction. The aggregate Earn-Out Payments shall be equal to but shall not exceed $1,858,325 in the aggregate.
|
4.
|
Release of intercompany balances between Xfone and the UK Subsidiaries amounting $1,718,659 as of June 30, 2010.
|
June 30,
|
||||
2010
|
||||
Cash
|
$
|
214,881
|
||
Other current assets
|
2,767,461
|
|||
Fixed assets, net
|
852,958
|
|||
Goodwill
|
4,788,096
|
|||
Other assets
|
131,426
|
|||
Note payable
|
(1,292,353
|
)
|
||
Other current liabilities
|
(2,870,255
|
)
|
||
Other long-term liability
|
(160,404
|
)
|
||
Net assets
|
$
|
4,431,810
|
||
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
Three months ended
|
Six months ended
|
|||||||||||||||
June 30,
|
June 30,
|
|||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||
Revenues
|
$
|
2,556,886
|
$
|
4,049,266
|
$
|
5,864,395
|
$
|
7,699,806
|
||||||||
Cost of revenues
|
729,777
|
1,786,164
|
2,084,363
|
3,652,462
|
||||||||||||
Gross profit
|
1,827,109
|
2,263,102
|
3,780,032
|
4,047,344
|
||||||||||||
Operating expenses:
|
||||||||||||||||
Marketing and selling
|
1,088,986
|
1,198,678
|
2,226,053
|
2,315,155
|
||||||||||||
General and administrative
|
696,278
|
754,953
|
1,295,059
|
998,618
|
||||||||||||
Impairment of goodwill
|
-
|
-
|
800,000
|
-
|
||||||||||||
Total operating expenses
|
1,785,264
|
1,953,631
|
4,321,112
|
3,313,773
|
||||||||||||
Operating profit (loss)
|
41,845
|
309,471
|
(541,080
|
)
|
733,571
|
|||||||||||
Financing expenses, net
|
(17,424
|
)
|
(13,531
|
)
|
(67,609
|
)
|
(30,169
|
)
|
||||||||
Income (loss) before taxes
|
24,421
|
295,940
|
(608,689
|
)
|
703,402
|
|||||||||||
Income tax benefit (expense)
|
-
|
(4,960
|
)
|
-
|
(2,529
|
)
|
||||||||||
Net income (loss) from discontinued operation in the United Kingdom
|
$
|
24,421
|
$
|
290,980
|
$
|
(608,689
|
)
|
$
|
700,873
|
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
B.
|
Operations in Israel
|
June 30
|
||||
2010
|
||||
Cash
|
$
|
176,289
|
||
Other current assets
|
2,077,456
|
|||
Fixed assets, net
|
1,472,017
|
|||
Long-term assets
|
58,799
|
|||
Other long-term assets
|
249,899
|
|||
Current maturities of notes payable
|
(259,360
|
)
|
||
Other current liabilities
|
(2,408,154
|
)
|
||
Long-term notes payable
|
(385,363
|
)
|
||
Other long-term liability
|
(114,775
|
)
|
||
Net assets
|
$
|
866,808
|
||
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
Three months ended
|
Six months ended
|
|||||||||||||||
June 30,
|
June 30,
|
|||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||
Revenues
|
$
|
2,280,029
|
$
|
1,915,598
|
$
|
4,535,430
|
$
|
4,089,480
|
||||||||
Cost of revenues
|
1,254,828
|
1,090,503
|
2,406,916
|
2,346,846
|
||||||||||||
Gross profit
|
1,025,201
|
825,095
|
2,128,514
|
1,742,634
|
||||||||||||
Operating expenses:
|
||||||||||||||||
Marketing and selling
|
205,358
|
394,731
|
447,931
|
802,130
|
||||||||||||
General and administrative
|
440,205
|
477,306
|
882,959
|
819,536
|
||||||||||||
Non-recurring loss
|
-
|
506,176
|
-
|
506,176
|
||||||||||||
Total operating expenses
|
645,563
|
1,378,213
|
1,330,890
|
2,127,842
|
||||||||||||
Operating profit (loss)
|
379,638
|
(553,118
|
)
|
797,624
|
(385,208
|
)
|
||||||||||
Financing expenses, net
|
(40,476
|
)
|
(103,663
|
)
|
(85,016
|
)
|
(170,985
|
)
|
||||||||
Income (loss) before taxes
|
339,162
|
(656,781
|
)
|
712,608
|
(556,193
|
)
|
||||||||||
Income tax expense
|
(92,162
|
)
|
(142,522
|
)
|
(185,256
|
)
|
(171,638
|
)
|
||||||||
Net income (loss)
|
247,000
|
(799,303
|
)
|
527,352
|
(727,831
|
)
|
||||||||||
Income attributed to non-controlling interest
|
(66,339
|
)
|
138,716
|
(163,479
|
)
|
119,162
|
||||||||||
Net income (loss) from discontinued operation in the Israel
|
$
|
180,661
|
$
|
(660,587
|
)
|
$
|
363,873
|
$
|
(608,669
|
)
|
||||||
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
A.
|
NTS has a loan with a commercial bank with an outstanding balance of $1,380,204 as of June 30, 2010. The loan is secured by an assignment of all NTS' trade accounts receivable. The loan bears interest at a rate equivalent to Wall Street Journal Prime, but not less than 6% per annum. The Wall Street Journal Prime rate was 3.25% at June 30, 2010. The loan is repayable in equal monthly installments of $61,212 each. The Company negotiated with the bank the repayment schedule and the parties agreed to postpone the repayment of the loan from its original due date of May 28, 2010 to September 25, 2010.
|
B.
|
NTS Telephone Company, LLC, a wholly owned subsidiary of NTS has received approval from the Rural Utilities Service (“RUS”), a division of the United States Department of Agriculture, for an $11.8 million, 17-year debt facility to complete a telecommunications overbuild project in Levelland, Texas. The RUS loan is non-recourse to NTS and all other NTS subsidiaries and is a cost-of-money loan, bearing interest at the average rate for 10-year U.S. Treasury obligations. Advances are requested as the construction progresses, and the interest rate is set based upon the prevailing rate at the time of each individual advance. The current average interest rate is approximately 3.20%.
The total aggregate amount of these loans as of June 30, 2010 and December 31, 2009 are $7,143,976 and $5,574,100, respectively. The loans are to be repaid in monthly installments until 2024.
|
C.
|
Long-term loan from Burlingame Equity Investors, LP (“Burlingame”) (See Note 5.B)
|
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
A.
|
Issuance of options to officers and employees
|
(1) The Company's President, Chief Executive Officer and director was granted options to purchase 1,500,000 shares of common stock, fully vested, exercisable at $1.10 per share and expiring five years from the date of grant. Based on the assumptions below, the Company estimated that the fair value of the options at $294,386.
|
|
(2) The Company's Chief Financial Officer, was granted options to purchase 400,000 shares of common stock, exercisable at $1.10 per share and expiring seven years from the grant date. The options will vest as to 25% of the underlying shares 12 months from the date of grant. The remaining 75% of the options shall vest in equal quarterly installments after 15 months from the date of grant. In the event of a change of control of the Company, any unvested and outstanding portion of the options shall immediately and fully vest. Based on the assumptions below, the Company estimated that the fair value of the options at $107,050.
|
|
(3) An aggregate of 1,372,500 options to purchase shares of common stock were granted to other employees of the Company and its subsidiaries. Each such option is exercisable at $1.10 per share and expires seven years from the date of grant. Of these options, 85,000 options are fully vested on the date of grant, and the remaining 1,287,500 options will vest as to 25% of the underlying shares 12 months from the date of grant, with the remaining 75% of the options vesting in equal quarterly installments after 15 months from the date of grant. Additionally, 125,000 of the options will immediately and fully vest in the event of a change in control of the Company. Based on the assumption below, the Company estimated that the fair value of the options at $367,311. On March 22, 2010, 69,500 of these options were exercised.
The Company’s aggregate equity-based compensation expense for the six months ended June 30, 2010 and 2009 totaled $451,383 and $304,034, respectively.
The weighted average estimated fair value of employee stock options granted during the six months ended June 30, 2010 was $0.23 per share, using the Black-Scholes option pricing model, with the following weighted average assumptions (annualized percentages):
|
Volatility
|
48.5 | % | ||
Risk-free interest rate
|
2.76 | % | ||
Dividend yield
|
0 | % | ||
Forfeiture rate
|
20 | % |
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
B.
|
Securities Purchase Agreement with Burlingame
|
(1) A senior promissory note in the aggregate principal amount of $3,500,000, maturing on March 22, 2012. Interest accrues at an annual rate of 10% and is payable quarterly. The note has equal liquidation rights with the Company's Series A Bonds issued in Israel on December 13, 2007.
|
|
(2) 2,173,913 shares of the Company’s common stock at a price of $1.15 per share for a total purchase price of $2,500,000.
|
|
(3) A warrant to purchase 950,000 shares of the Company’s Common Stock, which shall be exercisable at a price of $2.00 per share for a period of 5 years. The number of shares issuable upon exercise of the Warrant, and/or the applicable exercise price, may be proportionately adjusted in the event of a stock dividend, distribution, subdivision, combination, merger, consolidation, sale of assets, spin-off or similar transactions.
|
C.
|
Subscription Agreement with certain investors affiliated with Gagnon Securities LLC
|
Xfone, Inc. and Subsidiaries
|
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2010
(Unaudited)
|
Item 2.
|
Management’s Discussion and Analysis of Financial Condition and Results of Operations
|
1.
|
Our release from the repayment of the loan from Iddo Keinan, the son of Mr. Keinan and an employee of Swiftnet dated December 10, 2009, pursuant to which Iddo Keinan extended to Swiftnet a loan of £860,044 ($1,292,353);.
|
2.
|
Release from our obligation to Bank Leumi (UK) Plc. for of £150,000 ($228,375), thereby releasing us from our obligation to Bank Leumi (UK) Plc.; and
|
3.
|
An annual earn-out payment over the following years beginning on the consummation of the Transaction. The aggregate Earn-Out Payments shall be equal to but shall not exceed $1,858,325 in the aggregate.
|
4.
|
Release of intercompany balances between us and the UK Subsidiaries.
|
Three months ended
|
Six months ended
|
|||||||||||||||
June 30,
|
June 30,
|
|||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||
Revenues
|
$
|
2,556,886
|
$
|
4,049,266
|
$
|
5,864,395
|
$
|
7,699,806
|
||||||||
Cost of revenues
|
729,777
|
1,786,164
|
2,084,363
|
3,652,462
|
||||||||||||
Gross profit
|
1,827,109
|
2,263,102
|
3,780,032
|
4,047,344
|
||||||||||||
Operating expenses:
|
||||||||||||||||
Marketing and selling
|
1,088,986
|
1,198,678
|
2,226,053
|
2,315,155
|
||||||||||||
General and administrative
|
696,278
|
754,953
|
1,295,059
|
998,618
|
||||||||||||
Impairment of goodwill
|
-
|
-
|
800,000
|
-
|
||||||||||||
Total operating expenses
|
1,785,264
|
1,953,631
|
4,321,112
|
3,313,773
|
||||||||||||
Operating profit (loss)
|
41,845
|
309,471
|
(541,080
|
)
|
733,571
|
|||||||||||
Financing expenses, net
|
(17,424
|
)
|
(13,531
|
)
|
(67,609
|
)
|
(30,169
|
)
|
||||||||
Income (loss) before taxes
|
24,421
|
295,940
|
(608,689
|
)
|
703,402
|
|||||||||||
Income tax benefit (expense)
|
-
|
(4,960
|
)
|
-
|
(2,529
|
)
|
||||||||||
Net income (loss) from discontinued operation in the United Kingdom
|
$
|
24,421
|
$
|
290,980
|
$
|
(608,689
|
)
|
$
|
700,873
|
Three months ended
|
Six months ended
|
|||||||||||||||
June 30,
|
June 30,
|
|||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||
Revenues
|
$
|
2,280,029
|
$
|
1,915,598
|
$
|
4,535,430
|
$
|
4,089,480
|
||||||||
Cost of revenues
|
1,254,828
|
1,090,503
|
2,406,916
|
2,346,846
|
||||||||||||
Gross profit
|
1,025,201
|
825,095
|
2,128,514
|
1,742,634
|
||||||||||||
Operating expenses:
|
||||||||||||||||
Marketing and selling
|
205,358
|
394,731
|
447,931
|
802,130
|
||||||||||||
General and administrative
|
440,205
|
477,306
|
882,959
|
819,536
|
||||||||||||
Non-recurring loss
|
-
|
506,176
|
-
|
506,176
|
||||||||||||
Total operating expenses
|
645,563
|
1,378,213
|
1,330,890
|
2,127,842
|
||||||||||||
Operating profit (loss)
|
379,638
|
(553,118
|
)
|
797,624
|
(385,208
|
)
|
||||||||||
Financing expenses, net
|
(40,476
|
)
|
(103,663
|
)
|
(85,016
|
)
|
(170,985
|
)
|
||||||||
Income (loss) before taxes
|
339,162
|
(656,781
|
)
|
712,608
|
(556,193
|
)
|
||||||||||
Income tax expense
|
(92,162
|
)
|
(142,522
|
)
|
(185,256
|
)
|
(171,638
|
)
|
||||||||
Net income (loss)
|
247,000
|
(799,303
|
)
|
527,352
|
(727,831
|
)
|
||||||||||
Income attributed to non-controlling interest
|
(66,339
|
)
|
138,716
|
(163,479
|
)
|
119,162
|
||||||||||
Net income (loss) from discontinued operation in the Israel
|
$
|
180,661
|
$
|
(660,587
|
)
|
$
|
363,873
|
$
|
(608,669
|
)
|
||||||
Three months ended
June 30,
|
Six months ended
June 30,
|
|||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||
Revenues
|
100.0
|
%
|
100.0
|
%
|
100.0
|
%
|
100.0
|
%
|
||||||||
Cost of Revenues
|
52.6
|
%
|
54.4
|
%
|
52.8
|
%
|
54.9
|
%
|
||||||||
Gross Profit
|
47.4
|
%
|
45.6
|
%
|
47.2.0
|
%
|
45.1
|
%
|
||||||||
Operating Expenses:
|
||||||||||||||||
Marketing and Selling
|
7.4
|
%
|
7.3
|
%
|
7.5
|
%
|
7.5
|
%
|
||||||||
General and Administrative
|
36.4
|
%
|
32.7
|
%
|
36.9
|
%
|
33.7
|
%
|
||||||||
Total Operating Expenses
|
43.8
|
%
|
40.1
|
%
|
44.4
|
%
|
41.2
|
%
|
||||||||
Income (loss) from continued operations before taxes and non-controlling interest
|
1.4
|
%
|
(11.5)
|
%
|
(2.5)
|
%
|
0.1
|
%
|
||||||||
Net Income (loss) from continued operations
|
0.9
|
%
|
(9.7)
|
%
|
(1.6)
|
%
|
1.2
|
%
|
||||||||
Net Income (loss) attributed to shareholders
|
2.3
|
%
|
(12.1)
|
%
|
(2.5)
|
%
|
1.5
|
%
|
Payments Due by Period
|
||||||||||||||||||||
Contractual Obligations
|
Total
|
Less than
1 Year
|
1-3 Years
|
4-5 Years
|
More than
5 Years
|
|||||||||||||||
Domestic credit facility
|
$
|
1,380,204
|
$
|
1,380,204
|
$
|
-
|
$
|
-
|
$
|
-
|
||||||||||
Domestic Note Payable
|
2,041,354
|
1,994,878
|
33,596
|
12,880
|
-
|
|||||||||||||||
Foreign credit facility
|
228,375
|
228,375
|
-
|
-
|
-
|
|||||||||||||||
Other notes payable
|
4,934,606
|
1,756,505
|
2923900
|
-
|
254,201
|
|||||||||||||||
Notes Payable from the United States Department of Agriculture
|
7,143,976
|
358,177
|
716,353
|
716,353
|
5,353,093
|
|||||||||||||||
Bonds
|
20,716,053
|
3,546,808
|
7,093,615
|
7,093,615
|
2,982,015
|
|||||||||||||||
Capital leases
|
325,257
|
178, 747
|
146,510
|
-
|
-
|
|||||||||||||||
Operating leases
|
5,923,400
|
2,257,257
|
3,507,328
|
158,816
|
-
|
|||||||||||||||
Total contractual cash obligations
|
$
|
42,693,225
|
$
|
11,522,204
|
$
|
14,421,302
|
$
|
7,981,664
|
$
|
8,589,309
|
1. Security interest in: (i) 51% of each of the Class A shares and Class B shares of the Swiftnet; (ii) 51% of the issued share capital of Equitalk; (iii) 100% of the issued share capital of Auracall; (iv) 100% of the issued share capital of Story Telecom;
|
2. Debentures over the entire assets of the Swiftnet and each UK Subsidiary.
|
3. Security interest in any proceeds of a sale of our interest in the capital stock of Xfone 018, Ltd., in an amount equal to the amount of the Loan.
|
1. A senior promissory note in the aggregate principal amount of $3,500,000, maturing on March 22, 2012. Interest accrues at an annual rate of 10% and is payable quarterly. The note ranks pari passu in rights of liquidation with our Series A Bonds.
|
2. 2,173,913 shares of our common stock at a price of $1.15 per share for a total purchase price of $2,500,000.
|
3. A warrant to purchase 950,000 shares of our Common Stock, which shall be exercisable at a price of $2.00 per share for a period of 5 years. The number of shares issuable upon exercise of the Warrant, and/or the applicable exercise price, may be proportionately adjusted in the event of a stock dividend, distribution, subdivision, combination, merger, consolidation, sale of assets, spin-off or similar transactions.
|
Item 3.
|
Quantitative and Qualitative Disclosures about Market Risk
|
Item 4T.
|
Controls and Procedures
|
Item 1.
|
Legal Proceedings
|
Item 1A.
|
Risk Factors
|
Item 2.
|
Unregistered Sales of Equity Securities and Use of Proceeds
|
Item 3.
|
Defaults upon Senior Securities
|
Item 4.
|
(Removed and Reserved)
|
Item 5.
|
Other Information
|
Item 6.
|
Exhibits
|
Exhibit Number
|
Description
|
2.
|
Agreement and plan of reorganization dated September 20, 2000, between the Company and Swiftnet Limited. (1)
|
3.1
|
Articles of Incorporation of the Company.(1)
|
3.1.1
|
Certificate of Amendment to the Articles of Incorporation of the Company, dated January 18, 2007. (56)
|
3.11
|
Reamended and Restated Bylaws of the Company dated January 15, 2009.(55)
|
3.3
|
Memorandum of Association of Swiftnet Limited. (1)
|
3.4
|
Articles of Association of Swiftnet Limited. (1)
|
3.6
|
Bylaws of Xfone USA, Inc. (7)
|
4.
|
Specimen Stock Certificate.(1)
|
5.
|
Opinion of Gersten Savage LLP. *
|
10.1
|
Agreement dated May 11, 2000, between Swiftnet Limited and Guy Nissenson.(1)
|
10.2
|
Employment Agreement dated January 1, 2000 with Bosmat Houston. (1)
|
10.3
|
Loan Agreement dated August 5, 2000, with Swiftnet Limited, Guy Nissenson, and Nissim Levy.(1)
|
10.4
|
Promissory Note dated September 29, 2000, between the Company and Abraham Keinan.(1)
|
10.5
|
Stock Purchase Agreement dated June 19, 2000, between Swiftnet Limited, Abraham Keinan, and Campbeltown Business Ltd. (1)
|
10.6
|
Consulting Agreement dated May 11, 2000 between Swiftnet Limited and Campbeltown Business Ltd.(1)
|
10.7
|
Agreement dated July 30, 2001, with Campbeltown Business Ltd.(1)
|
10.8
|
Contract dated June 20, 1998, with WorldCom International Ltd.(1)
|
10.9
|
Contract dated April 11, 2000, with VoiceNet Inc.(1)
|
10.10
|
Contract dated April 25, 2000, with InTouchUK.com Ltd.(1)
|
10.11
|
Letter of Understanding dated July 30, 2001, from Campbeltown Business Ltd. to the Company.(2)
|
10.12
|
Agreement dated April 6, 2000, between Adar International, Inc./Mr. Sidney J. Golub and Swiftnet Limited. (2)
|
10.13
|
Lease Agreement dated December 4, 1991, between Elmtree Investments Ltd. and Swiftnet Limited.(2)
|
10.14
|
Lease Agreement dated October 8, 2001, between Postwick Property Holdings Limited and Swiftnet Limited. (2)
|
10.15
|
Agreement dated September 30, 2002, between the Company, Swiftnet Limited., and Nir Davison.(5)
|
10.16
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Platinum Partners Value Arbitrage Fund LP, Countrywide Partners LLC and WEC Partners LLC. (6)
|
10.17
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Simon Langbart, Robert Langbart, Arik Ecker, Zwi Ecker, Michael Derman, Errol Derman, Yuval Haim Sobel, Zvi Sobel, Tenram Investment Ltd., Michael Zinn, Michael Weiss. (6)
|
10.18
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Southridge Partners LP and Southshore Capital Fund Ltd. (6)
|
10.19
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Crestview Capital Master LLC. (6)
|
10.20
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Adam Breslawsky, Oded Levy, Michael Epstein, Steven Frank, Joshua Lobel, Joshua Kazan and The Oberon Group LLC. (6)
|
10.21
|
Newco (Auracall Limited) Formation Agreement.(6)
|
10.22
|
Agreement with ITXC Corporation.(6)
|
10.23
|
Agreement with Teleglobe International.(6)
|
10.23.1
|
Amendment to Agreement with Teleglobe International.(6)
|
10.24
|
Agreement with British Telecommunications.(6)
|
10.25
|
Agreement with Easyair Limited (OpenAir).(6)
|
10.26
|
Agreement with Worldnet.(6)
|
10.27
|
Agreement with Portfolio PR.(6)
|
10.28
|
Agreement with Stern and Company.(6)
|
10.29
|
Letter to the Company dated December 31, 2003, from Abraham Keinan.(6)
|
10.30
|
Agreement between Swiftnet Limited and Dan Kirschner.(8)
|
10.31
|
Agreement and Plan of Merger.(7)
|
10.32
|
Escrow Agreement.(7)
|
10.33
|
Release Agreement.(7)
|
10.34
|
Employment Agreement date March 10, 2005, between Xfone USA, Inc. and Wade Spooner.(7)
|
10.34.1
|
Separation Agreement and Release, dated August 15, 2008, between Xfone USA, Inc. and Wade Spooner. (56)
|
10.35
|
Employment Agreement date March 10, 2005, between Xfone USA, Inc. and Ted Parsons.(7)
|
10.35.1
|
Separation Agreement and Release, dated August 15, 2008, between Xfone USA, Inc. and Ted Parsons. (56)
|
10.36
|
First Amendment to Agreement and Plan of Merger (to acquire WS Telecom, Inc.).(11)
|
10.37
|
Finders Agreement with The Oberon Group, LLC.(11)
|
10.38
|
Agreement with The Oberon Group, LLC.(11)
|
10.39
|
Management Agreement between WS Telecom, Inc. and Xfone USA, Inc.(8)
|
10.40
|
Engagement Letter to Tommy R. Ferguson, Confidentiality Agreement, and Executive Inventions Agreement dated August 19, 2004. (11)
|
10.41
|
Voting Agreement dated September 28, 2004.(11)
|
10.42
|
Novation Agreement executed September 27, 2004.(11)
|
10.43
|
Novation Agreement executed September 28, 2004.(11)
|
10.44
|
Investment Agreement dated August 26, 2004, with Ilan Shoshani.(12)
|
10.44.1
|
Addendum and Clarification to the Investment Agreement with Ilan Shoshani dated September 13, 2004. (12)
|
10.45
|
Agreement dated November 16, 2004, with Elite Financial Communications Group.(13)
|
10.46
|
Financial Services and Business Development Consulting Agreement dated November 18, 2004, with Dionysos Investments (1999) Ltd. (13)
|
10.47
|
Agreement and Plan of Merger to acquire I-55 Internet Services, Inc. dated August 18, 2005.(14)
|
10.48
|
Agreement and Plan of Merger to acquire I-55 Telecommunications, LLC dated August 26, 2005.(15)
|
10.49
|
Securities Purchase Agreement, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
|
10.50
|
Secured Convertible Term Note, dated September 27, 2005, by the Company in favor of Laurus Master Fund, Ltd.; Adjustment Provision Waiver Agreement, dated September 27, 2005, by and between the Company and Laurus Fund, Ltd. (16)
|
10.51
|
Common Stock Purchase Warrant, dated September 27, 2005, by the Company in favor of Laurus Master Fund, Ltd. (16)
|
10.52
|
Registration Rights Agreement, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
|
10.53
|
Master Security Agreement, dated September 27, 2005, by and between the Company, Xfone USA, Inc., eXpeTel Communications, Inc., Gulf Coast Utilities, Inc., and Laurus Master Fund, Ltd. (16)
|
10.54
|
Stock Pledge Agreement, dated September 27, 2005, by and between the Company, Xfone USA, Inc., and Laurus Master Fund, Ltd. (16)
|
10.55
|
Subsidiary Guarantee dated September 27, 2005, by Xfone USA, Inc., eXpeTel Communications, Inc. and Gulf Coast Utilities, Inc. in favor of Laurus Master Fund, Ltd. (16)
|
10.56
|
Funds Escrow Agreement, dated September 27, 2005, by and between the Company, Laurus Master Fund, Ltd. and Loeb & Loeb LLP; Disbursement Letter, dated September 27, 2005. (16)
|
10.57
|
Incremental Funding Side Letter, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
|
10.58
|
Securities Purchase Agreement dated September 28, 2005, by and between the Company and Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
|
10.59
|
Registration Rights Agreement, dated September 28, 2005, by and between the Company and Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
|
10.60
|
Common Stock Purchase Warrant, dated September 28, 2005, by the Company in favor of the Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
|
10.61
|
Escrow Agreement, dated September 28, 2005, by and between the Company, the Purchasers and Feldman Weinstein LLP. (16)
|
10.62
|
Management Agreement dated October 11, 2005.(17)
|
10.63
|
First Amendment to Agreement and Plan of Merger (to acquire I-55 Internet Services, Inc.), dated October 10, 2005. (17)
|
10.64
|
Letter Agreement with MCG Capital Corporation dated October 10, 2005.(17)
|
10.65
|
Securities Purchase Agreement, dated November 23, 2005, between the Company and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
|
10.66
|
Registration Rights Agreement, dated November 23, 2005, between the Company and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
|
10.67
|
Common Stock Purchase Warrant, dated November 23, 2005, by the Company in favor of Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
|
10.68
|
Escrow Agreement, dated November 23, 2005, between the Company, the Escrow Agent, and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
|
10.69
|
Management Agreement with I-55 Telecommunications, LLC dated October 12, 2005.(19)
|
10.70
|
Agreement - General Terms and Conditions with EBI Comm, Inc., dated January 1, 2006.(21)
|
10.71
|
Asset Purchase Agreement with Canufly.net, Inc., dated January 10, 2006.(21)
|
10.72
|
Stock Purchase Agreement dated May 10, 2006, by and among the Company, Story Telecom, Inc., Story Telecom Limited, Story Telecom (Ireland) Limited, Nir Davison, and Trecastle Holdings Limited. (23)
|
10.73
|
Agreement dated May 25, 2006, by and among the Company and the shareholders of Equitalk.co.uk Limited. (24)
|
10.74
|
Securities Purchase Agreement, dated June 19, 2006, by and between the Company and the Purchasers. (25)
|
10.75
|
Registration Rights Agreement, dated June 19, 2006, by and between the Company and the Purchasers. (25)
|
10.76
|
Common Stock Purchase Warrant, dated June 19, 2006, by the Company in favor of the Purchasers.(25)
|
10.77
|
Escrow Agreement, dated June 19, 2006, by and between the Company, the Escrow Agent, and the Purchasers. (25)
|
10.78
|
Form of Indemnification Agreement between the Company and its Directors and Officers.(27)
|
10.79
|
Agreement to Purchase Promissory Note dated October 31, 2005, with Randall Wade James Tricou.(27)
|
10.80
|
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Tricou Construction. (27)
|
10.81
|
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Bon Aire Estates. (27)
|
10.82
|
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Bon Aire Utility. (27)
|
10.83
|
Agreement to Purchase Promissory Note dated February 3, 2006, with Danny Acosta.(27)
|
10.84
|
Letter Agreement dated November 15, 2005, with Oberon Securities, LLC.(27)
|
10.85
|
Letter Agreement dated June 15, 2006, with Oberon Securities, LLC.(27)
|
10.86
|
Second Amendment to Agreement and Plan of Merger (to acquire WS Telecom, Inc.), dated June 28, 2006. (27)
|
10.87
|
General Contract for Services dated January 1, 2005, by and between the Company and Swiftnet Limited. (27)
|
10.88
|
Service Agreement dated December 6, 2005, by and between the Company and Elite Financial Communications Group, LLC. (27)
|
10.89
|
Agreement for Market Making in Securities dated July 31, 2006, by and between the Company and Excellence Nessuah Stock Exchange Services Ltd. (27)
|
10.90
|
Shareholders Loan Agreement, dated September 27, 2006, by and between Auracall Limited, Swiftnet Limited, and Dan Kirschner. (28)
|
10.91
|
Service Agreement, dated November 7, 2006, by and between the Company and Institutional Marketing Services, Inc. (28)
|
10.92
|
Consultancy Agreement, dated November 20, 2006, by and between the Company and Crestview Capital Partners, LLP. (29)
|
10.93
|
Agreement dated December 24, 2006, by and between the Company, Halman-Aldubi Provident Funds Ltd., and Halman-Aldubi Pension Funds Ltd. [translation from Hebrew]. (31)
|
10.94
|
First Amendment to Financial Services and Business Development Consulting Agreement dated February 8, 2007, by and between the Company and Dionysos Investments (1999) Ltd. (33)
|
10.95
|
Agreement dated February 8, 2007, by and between the Company, Swiftnet Limited, Campbeltown Business, Ltd., and Mr. Abraham Keinan. (33)
|
10.96
|
First Amendment to General Contract for Services, dated March 14, 2007, by and between the Company and Swiftnet Limited. (34)
|
10.97
|
Employment Agreement, dated March 28, 2007, between Swiftnet Limited and Abraham Keinan.(34)
|
10.98
|
Consulting Agreement, dated March 28, 2007, between the Company and Abraham Keinan. (34)
|
10.99
|
Employment Agreement, dated March 28, 2007, between Swiftnet Limited and Guy Nissenson.(34)
|
10.100
|
Consulting Agreement, dated March 28, 2007, between the Company and Guy Nissenson.(34)
|
10.101
|
Settlement Agreement and Release dated May 31, 2007, by and among Embarq Logistics, Inc, Xfone USA, Inc. and the Company. (35)
|
10.102
|
Promissory Note dated May 31, 2007, by Xfone USA, Inc.(35)
|
10.103
|
Parent Guarantee dated as of May 31, 2007 by the Company in favor of Embarq Logistics, Inc.(35)
|
10.104
|
Share Purchase Agreement dated August 15, 2007, by and between Dan Kirschner, as Seller, Swiftnet Limited, as Buyer, and Xfone, Inc. (36)
|
10.105
|
Inter-Company Loan Agreement dated August 15, 2007, by and between Auracall Limited, as Lender, and Swiftnet Limited, as Borrower. (36)
|
10.106
|
Stock Purchase Agreement dated August [20], 2007, by and among the Company, NTS Communications, Inc., and the Shareholders of NTS Communications, Inc. (37)
|
10.107
|
Letter of Joint Venture dated June 15, 2007, by and among the Company and NTS Holdings, Inc.(37)
|
10.107.1
|
Form of Free Cash Flow Participation Agreement to be Entered into between the Company and NTS Holdings, Inc. Upon Consummation of the Acquisition. (37)
|
10.107.2
|
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Barbara Baldwin upon Consummation of the Acquisition. (37)
|
10.107.3
|
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Jerry Hoover upon Consummation of the Acquisition. (37)
|
10.107.4
|
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Brad Worthington upon Consummation of the Acquisition. (37)
|
10.108
|
Employment Contract signed on August 26, 2007, by and between the Company’s Israeli based Subsidiary Xfone 018 ltd. and Roni Haliva. (38)
|
10.109
|
Subscription Agreement for the Purchase of Shares of Common Stock of the Company Dated October 23, 2007. (39)
|
10.110
|
Subscription Agreement for the Purchase of Shares of Common Stock of the Company Dated November 1, 2007. (41)
|
10.111
|
Form of Subscription Agreement for the Purchase of Units Consisting of Two Shares of Common Stock and One Common Stock Purchase Warrant. (42)
|
10.112
|
Form of Common Stock Purchase Warrant.(42)
|
10.113
|
First Amendment to Stock Purchase Agreement.(43)
|
10.114.1
|
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Barbara Baldwin. (44)
|
10.114.2
|
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Jerry Hoover. (44)
|
10.114.3
|
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Brad Worthington .(44)
|
10.115
|
Free cash flow participation agreement dated as of February 26, 2008, by and among Xfone, Inc. and NTS Holdings, Inc. (44)
|
10.116
|
Escrow agreement dated as of February 26, 2008, by and among Xfone, Inc., Chris Chelette, Robert Healea and Kevin Buxkemper the NTS shareholders representatives, and Trustmark National Bank, as Escrow Agent. (44)
|
10.117
|
Release, effective as of February 26, 2008, entered into by each of Barbara Baldwin, Jerry Hoover and Brad Worthington (44)
|
10.118
|
Noncompetition, nondisclosure and nonsolicitation agreement dated as of February 26, 2008, by and among Xfone, Inc., Telephone Electronics Corporation, Joseph D. Fail, Chris Chelette, Robert Healea, Joey Garner, and Walter Frank. (44)
|
10.119
|
Second amendment to stock purchase agreement entered into by each of February 26, 2008 by and among Xfone, Inc., NTS Communications, Inc. and Chris Chelette, Robert Healea and Kevin Buxkemper, as the NTS shareholders representatives. (44)
|
10.120
|
Modification of Financial Consulting Agreement between Xfone, Inc. and Oberon Securities, LLC in connection with NTS Communications Transaction. (45)
|
10.121
|
Fees Due to Oberon Securities, LLC from Xfone, Inc. in connection with services provided in conjunction with the acquisition of NTS Communications, Inc. (45)
|
10.122
|
Agreement of Principles dated March 17, 2008 by and between Xfone 018 Ltd. and Tiv Taam Holdings 1 Ltd. [Free Translation from Hebrew]. (46)
|
10.123
|
Compromise Agreement dated March 25, 2008, between Xfone, Inc., Story Telecom, Inc., Story Telecom Limited, Trecastle Holdings Limited and Nir Davison. (47)
|
10.124
|
Securities Purchase Agreement dated March 25, 2008, between Xfone, Inc., Trecastle Holdings Limited and Nir Davison. (47)
|
10.125
|
Third Amendment to Stock Purchase Agreement entered into as of April 25, 2008 by and among Chris Chelette, Robert Healea and Kevin Buxkemper, as Sellers’ Representative, NTS Communications, Inc. and Xfone, Inc. (48)
|
10.126
|
Irrevocable Option Agreement dated as of July 1, 2008 by and between Abraham Keinan and Guy Nissenson (49)
|
10.127
|
Indenture, entered into on December 13, 2007, as amended and restated on October 27, 2008, between Xfone, Inc. and Ziv Haft Trusts Company Ltd. (free translation from Hebrew). (51)
|
10.128
|
Form of warrant (free translation from Hebrew). (51)
|
10.129
|
Underwriting Agreement between Xfone, Inc., Excellence Nessuah Underwriting (1993) Ltd. and The First International & Co. - Underwriting and Investments Ltd., dated November 2, 2008 (free translation from Hebrew). (52)
|
10.130
|
Market Making Agreement dated December 24, 2008, by and between Xfone, Inc. and Harel Finance Trade & Securities Ltd. [Free translation from Hebrew] (54)
|
10.131
|
Second Amendment to Financial Services and Business Development Consulting Agreement dated January 15, 2009, by and between Xfone, Inc. and Dionysos Investments (1999) Ltd. (55)
|
10.132
|
Employment Agreement between NTS Communications, Inc. and Niv Krikov dated July 1, 2009. (59)
|
10.133
|
Agreement dated November 20, 2009 between Xfone, Inc., David Sela and Blokshtil Ltd. (English translation). (60)
|
10.134
|
Loan Agreement dated as of December 10, 2009, between Swiftnet Limited, Iddo Keinan, Xfone, Inc., Auracall Limited, Equitalk.co.uk Limited and Story Telecom Limited. (61)
|
10.135
|
General Release and Settlement Agreement dated December 28, 2009 between Xfone, Inc., and the selling shareholders of NTS Communications, Inc. (62)
|
10.136
|
Agreement dated January 29, 2010 by and between Xfone, Inc., Abraham Keinan, and AMIT K Limited. (63)
|
10.137
|
Agreement dated January 29, 2010 by and between Xfone, Inc. and Abraham Keinan. (63)
|
10.138
|
Agreement dated January 29, 2010 by and between Abraham Keinan, Guy Nissenson and Campbeltown Business Ltd. (63)
|
10.139
|
Securities Purchase Agreement dated effective as of March 23, 2010. (64)
|
10.140
|
Form of Subscription Agreement dated as of March 23, 2010. (64)
|
10.141
|
Contract dated May 14, 2010 by and between Xfone, Inc., Newcall Ltd., Margo Pharma, Ltd., and Marathon Telecom Ltd. [English translation] (65)
|
10.142
|
Employment Agreement entered into on June 30, 2010 between Xfone, Inc. and Guy Nissenson [Free translation from Hebrew] (66)
|
10.143
|
First Amendment to Consulting Agreement dated June 30, 2010 between Xfone, Inc. and Guy Nissenson (66)
|
16.2
|
Letter dated June 1, 2009 from Stark Winter Schenkein & Co., LLP to the Securities and Exchange Commission. (58)
|
21.1
|
List of Subsidiaries (Amended as of April 2009) (57)
|
|
(1)
|
Denotes previously filed exhibits: filed on August 10, 2001 with Xfone, Inc.’s SB-2 Registration Statement.
|
(2)
|
Denotes previously filed exhibits: filed on October 16, 2001 with Xfone, Inc.’s SB-2/Amendment 1 Registration Statement.
|
|
(5)
|
Denotes previously filed exhibit: filed on March 3, 2003 with Xfone, Inc.’s SB-2/Post Effective Amendment 2 Registration Statement.
|
|
(6)
|
Denotes previously filed exhibit: filed on April 15, 2004 with Xfone’s, Inc. SB-2 Amendment 1 Registration Statement.
|
|
(7)
|
Denotes previously filed exhibit: filed on June 1, 2004 with Xfone, Inc.’s Form 8-K.
|
|
(8)
|
Denotes previously filed exhibit: filed on June 7, 2004 with Xfone, Inc.’s SB-2/Amendment 2 Registration Statement.
|
|
(9)
|
Denotes previously filed exhibit: filed on August 11, 2004 with Xfone’s, Inc. SB-2 Amendment 3 Registration Statement.
|
|
(10)
|
Denotes previously filed exhibit: filed on September 13, 2004 with Xfone’s, Inc. SB-2 Amendment 4 Registration Statement.
|
|
(11)
|
Denotes previously filed exhibits: filed on October 4, 2004 with Xfone, Inc.’s Form 8-K
|
|
(12)
|
Denotes previously filed exhibits: filed on November 29, 2004 with Xfone, Inc.’s Form 8-K.
|
|
(13)
|
Denotes previously filed exhibits; filed on March 31, 2005 with Xfone, Inc.’s Form 10-KSB.
|
|
(14)
|
Denotes previously filed exhibit: filed on August 22, 2005 with Xfone, Inc.’s Form 8-K.
|
|
(15)
|
Denotes previously filed exhibit: filed on August 31, 2005 with Xfone, Inc.’s Form 8-K.
|
|
(16)
|
Denotes previously filed exhibits: filed on October 3, 2005 with Xfone, Inc.’s Form 8-K.
|
|
(17)
|
Denotes previously filed exhibits: filed on October 11, 2005 with Xfone, Inc.’s Form 8-K/A #1.
|
|
(18)
|
Denotes previously filed exhibits: filed on November 29, 2005 with Xfone, Inc.’s Form 8-K.
|
|
(19)
|
Denotes previously filed exhibit: filed on January 23, 2006 with Xfone, Inc.’s Form 8-K/A #3.
|
|
(21)
|
Denotes previously filed exhibit: filed on January 31, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(23)
|
Denotes previously filed exhibit: filed on May 16, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(24)
|
Denotes previously filed exhibit: filed on May 30, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(25)
|
Denotes previously filed exhibits: filed on June 20, 2006 with Xfone, Inc.’s Form 8-K.
|
(27)
|
Denotes previously filed exhibits: filed on July 31, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(28)
|
Denotes previously filed exhibits: filed on November 14, 2006 with Xfone, Inc.’s Form 10-QSB.
|
|
(29)
|
Denotes previously filed exhibit: filed on November 22, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(31)
|
Denotes previously filed exhibit: filed on December 28, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(33)
|
Denotes previously filed exhibits: filed on February 8, 2007 with Xfone, Inc.’s Form 8-K.
|
|
(34)
|
Denotes previously filed exhibits; filed on March 30, 2007 with Xfone, Inc.’s Form 10-KSB.
|
|
(35)
|
Denotes previously filed exhibits: filed on May 31, 2007 with Xfone, Inc.’s Form 8-K.
|
|
(36)
|
Denotes previously filed exhibits: filed on August 15, 2007 with Xfone, Inc.’s Form 8-K.
|
|
(37)
|
Denotes previously filed exhibits: filed on August 22, 2007 with Xfone, Inc.’s Form 8-K.
|
|
(38)
|
Denotes previously filed exhibit: filed on August 27, 2007 with Xfone, Inc.’s Form 8-K.
|
|
(39)
|
Denotes previously filed exhibit: filed on October 23, 2007 with Xfone, Inc.’s Form 8-K.
|
|
(41)
|
Denotes previously filed exhibit: filed on November 5, 2007 with Xfone, Inc.’s Form 8-K.
|
|
(42)
|
Denotes previously filed exhibits: filed on December 14, 2007 with Xfone, Inc.’s Form 8-K.
|
|
(43)
|
Denotes previously filed exhibit: filed on February 14, 2008 with Xfone, Inc.’s Form 8-K.
|
(44)
|
Denotes previously filed exhibits: filed on February 26, 2008 with Xfone, Inc.’s Form 8-K.
|
|
(45)
|
Denotes previously filed exhibits: filed on March 6, 2008 with Xfone, Inc.’s Form 8-K.
|
|
(46)
|
Denotes previously filed exhibit: filed on March 17, 2008 with Xfone, Inc.’s Form 8-K.
|
|
(47)
|
Denotes previously filed exhibits: filed on March 25 with Xfone, Inc.’s Form 8-K.
|
|
(48)
|
Denotes previously filed exhibit: filed on May 1, 2008 with Xfone, Inc.‘s Form 8-K.
|
|
(49)
|
Denotes previously filed exhibit: filed on July 1, 2008 with Xfone, Inc.‘s Form 8-K.
|
|
(51)
|
Denotes previously filed exhibit: filed on October 28, 2008 with Xfone, Inc.‘s Form 8-K.
|
|
(52)
|
Denotes previously filed exhibit: filed on November 4, 2008 with Xfone, Inc.‘s Form 8-K.
|
|
|
(54)
|
Denotes previously filed exhibit: filed on December 24, 2008 with Xfone, Inc.‘s Form 8-K.
|
(55)
|
Denotes previously filed exhibit: filed on January 16, 2009 with Xfone, Inc.‘s Form 8-K.
|
|
(56)
|
Denotes previously filed exhibit: filed on April 1, 2009 with Xfone, Inc.‘s Form 10-K.
|
|
(57)
|
Denotes previously filed exhibit: filed on April 30, 2009 with Xfone, Inc.‘s Form 10-K/A.
|
|
(58)
|
Denotes previously filed exhibit: filed on June 3, 2009 with Xfone, Inc.‘s Form 8-K/A.
|
|
(59)
|
Denotes previously filed exhibit: filed on July 1, 2009 with Xfone, Inc.‘s Form 8-K.
|
|
(60)
|
Denotes previously filed exhibit: filed on November 30, 2009 with Xfone, Inc.‘s Form 8-K.
|
|
(61)
|
Denotes previously filed exhibit: filed on December 11, 2009 with Xfone, Inc.‘s Form 8-K.
|
|
(62)
|
Denotes previously filed exhibit: filed on December 29, 2009 with Xfone, Inc.‘s Form 8-K.
|
|
(63)
|
Denotes previously filed exhibits: filed on January 29, 2010 with Xfone, Inc.‘s Form 8-K.
|
|
(64)
|
Denotes previously filed exhibits: filed on March 23, 2010 with Xfone, Inc.‘s Form 8-K.
|
|
(65)
|
Denotes previously filed exhibits: filed on June 1, 2010 with Xfone, Inc.’s Form 8-K.
|
|
(66)
|
Denotes previously filed exhibits: filed on June 30, 2010 with Xfone, Inc.’s Form 8-K.
|
XFONE, INC.
|
|||
Date: August 16, 2010
|
By:
|
/s/ Guy Nissenson
|
|
Guy Nissenson
President, Chief Executive Officer and Director
(principal executive officer)
|
XFONE, INC.
|
|||
Date: August 16, 2010
|
By:
|
/s/ Niv Krikov
|
|
Niv Krikov
Principal Accounting Officer, Treasurer and
Chief Financial Officer
(principal accounting and financial officer)
|
Exhibit Number
|
Description
|
2.
|
Agreement and plan of reorganization dated September 20, 2000, between the Company and Swiftnet Limited. (1)
|
3.1
|
Articles of Incorporation of the Company.(1)
|
3.1.1
|
Certificate of Amendment to the Articles of Incorporation of the Company, dated January 18, 2007. (56)
|
3.11
|
Reamended and Restated Bylaws of the Company dated January 15, 2009.(55)
|
3.3
|
Memorandum of Association of Swiftnet Limited. (1)
|
3.4
|
Articles of Association of Swiftnet Limited. (1)
|
3.6
|
Bylaws of Xfone USA, Inc. (7)
|
4.
|
Specimen Stock Certificate.(1)
|
5.
|
Opinion of Gersten Savage LLP. *
|
10.1
|
Agreement dated May 11, 2000, between Swiftnet Limited and Guy Nissenson.(1)
|
10.2
|
Employment Agreement dated January 1, 2000 with Bosmat Houston. (1)
|
10.3
|
Loan Agreement dated August 5, 2000, with Swiftnet Limited, Guy Nissenson, and Nissim Levy.(1)
|
10.4
|
Promissory Note dated September 29, 2000, between the Company and Abraham Keinan.(1)
|
10.5
|
Stock Purchase Agreement dated June 19, 2000, between Swiftnet Limited, Abraham Keinan, and Campbeltown Business Ltd. (1)
|
10.6
|
Consulting Agreement dated May 11, 2000 between Swiftnet Limited and Campbeltown Business Ltd.(1)
|
10.7
|
Agreement dated July 30, 2001, with Campbeltown Business Ltd.(1)
|
10.8
|
Contract dated June 20, 1998, with WorldCom International Ltd.(1)
|
10.9
|
Contract dated April 11, 2000, with VoiceNet Inc.(1)
|
10.10
|
Contract dated April 25, 2000, with InTouchUK.com Ltd.(1)
|
10.11
|
Letter of Understanding dated July 30, 2001, from Campbeltown Business Ltd. to the Company.(2)
|
10.12
|
Agreement dated April 6, 2000, between Adar International, Inc./Mr. Sidney J. Golub and Swiftnet Limited. (2)
|
10.13
|
Lease Agreement dated December 4, 1991, between Elmtree Investments Ltd. and Swiftnet Limited.(2)
|
10.14
|
Lease Agreement dated October 8, 2001, between Postwick Property Holdings Limited and Swiftnet Limited. (2)
|
10.15
|
Agreement dated September 30, 2002, between the Company, Swiftnet Limited., and Nir Davison.(5)
|
10.16
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Platinum Partners Value Arbitrage Fund LP, Countrywide Partners LLC and WEC Partners LLC. (6)
|
10.17
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Simon Langbart, Robert Langbart, Arik Ecker, Zwi Ecker, Michael Derman, Errol Derman, Yuval Haim Sobel, Zvi Sobel, Tenram Investment Ltd., Michael Zinn, Michael Weiss. (6)
|
10.18
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Southridge Partners LP and Southshore Capital Fund Ltd. (6)
|
10.19
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Crestview Capital Master LLC. (6)
|
10.20
|
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Adam Breslawsky, Oded Levy, Michael Epstein, Steven Frank, Joshua Lobel, Joshua Kazan and The Oberon Group LLC. (6)
|
10.21
|
Newco (Auracall Limited) Formation Agreement.(6)
|
10.22
|
Agreement with ITXC Corporation.(6)
|
10.23
|
Agreement with Teleglobe International.(6)
|
10.23.1
|
Amendment to Agreement with Teleglobe International.(6)
|
10.24
|
Agreement with British Telecommunications.(6)
|
10.25
|
Agreement with Easyair Limited (OpenAir).(6)
|
10.26
|
Agreement with Worldnet.(6)
|
10.27
|
Agreement with Portfolio PR.(6)
|
10.28
|
Agreement with Stern and Company.(6)
|
10.29
|
Letter to the Company dated December 31, 2003, from Abraham Keinan.(6)
|
10.30
|
Agreement between Swiftnet Limited and Dan Kirschner.(8)
|
10.31
|
Agreement and Plan of Merger.(7)
|
10.32
|
Escrow Agreement.(7)
|
10.33
|
Release Agreement.(7)
|
10.34
|
Employment Agreement date March 10, 2005, between Xfone USA, Inc. and Wade Spooner.(7)
|
10.34.1
|
Separation Agreement and Release, dated August 15, 2008, between Xfone USA, Inc. and Wade Spooner. (56)
|
10.35
|
Employment Agreement date March 10, 2005, between Xfone USA, Inc. and Ted Parsons.(7)
|
10.35.1
|
Separation Agreement and Release, dated August 15, 2008, between Xfone USA, Inc. and Ted Parsons. (56)
|
10.36
|
First Amendment to Agreement and Plan of Merger (to acquire WS Telecom, Inc.).(11)
|
10.37
|
Finders Agreement with The Oberon Group, LLC.(11)
|
10.38
|
Agreement with The Oberon Group, LLC.(11)
|
10.39
|
Management Agreement between WS Telecom, Inc. and Xfone USA, Inc.(8)
|
10.40
|
Engagement Letter to Tommy R. Ferguson, Confidentiality Agreement, and Executive Inventions Agreement dated August 19, 2004. (11)
|
10.41
|
Voting Agreement dated September 28, 2004.(11)
|
10.42
|
Novation Agreement executed September 27, 2004.(11)
|
10.43
|
Novation Agreement executed September 28, 2004.(11)
|
10.44
|
Investment Agreement dated August 26, 2004, with Ilan Shoshani.(12)
|
10.44.1
|
Addendum and Clarification to the Investment Agreement with Ilan Shoshani dated September 13, 2004. (12)
|
10.45
|
Agreement dated November 16, 2004, with Elite Financial Communications Group.(13)
|
10.46
|
Financial Services and Business Development Consulting Agreement dated November 18, 2004, with Dionysos Investments (1999) Ltd. (13)
|
10.47
|
Agreement and Plan of Merger to acquire I-55 Internet Services, Inc. dated August 18, 2005.(14)
|
10.48
|
Agreement and Plan of Merger to acquire I-55 Telecommunications, LLC dated August 26, 2005.(15)
|
10.49
|
Securities Purchase Agreement, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
|
10.50
|
Secured Convertible Term Note, dated September 27, 2005, by the Company in favor of Laurus Master Fund, Ltd.; Adjustment Provision Waiver Agreement, dated September 27, 2005, by and between the Company and Laurus Fund, Ltd. (16)
|
10.51
|
Common Stock Purchase Warrant, dated September 27, 2005, by the Company in favor of Laurus Master Fund, Ltd. (16)
|
10.52
|
Registration Rights Agreement, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
|
10.53
|
Master Security Agreement, dated September 27, 2005, by and between the Company, Xfone USA, Inc., eXpeTel Communications, Inc., Gulf Coast Utilities, Inc., and Laurus Master Fund, Ltd. (16)
|
10.54
|
Stock Pledge Agreement, dated September 27, 2005, by and between the Company, Xfone USA, Inc., and Laurus Master Fund, Ltd. (16)
|
10.55
|
Subsidiary Guarantee dated September 27, 2005, by Xfone USA, Inc., eXpeTel Communications, Inc. and Gulf Coast Utilities, Inc. in favor of Laurus Master Fund, Ltd. (16)
|
10.56
|
Funds Escrow Agreement, dated September 27, 2005, by and between the Company, Laurus Master Fund, Ltd. and Loeb & Loeb LLP; Disbursement Letter, dated September 27, 2005. (16)
|
10.57
|
Incremental Funding Side Letter, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
|
10.58
|
Securities Purchase Agreement dated September 28, 2005, by and between the Company and Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
|
10.59
|
Registration Rights Agreement, dated September 28, 2005, by and between the Company and Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
|
10.60
|
Common Stock Purchase Warrant, dated September 28, 2005, by the Company in favor of the Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
|
10.61
|
Escrow Agreement, dated September 28, 2005, by and between the Company, the Purchasers and Feldman Weinstein LLP. (16)
|
10.62
|
Management Agreement dated October 11, 2005.(17)
|
10.63
|
First Amendment to Agreement and Plan of Merger (to acquire I-55 Internet Services, Inc.), dated October 10, 2005. (17)
|
10.64
|
Letter Agreement with MCG Capital Corporation dated October 10, 2005.(17)
|
10.65
|
Securities Purchase Agreement, dated November 23, 2005, between the Company and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
|
10.66
|
Registration Rights Agreement, dated November 23, 2005, between the Company and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
|
10.67
|
Common Stock Purchase Warrant, dated November 23, 2005, by the Company in favor of Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
|
10.68
|
Escrow Agreement, dated November 23, 2005, between the Company, the Escrow Agent, and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
|
10.69
|
Management Agreement with I-55 Telecommunications, LLC dated October 12, 2005.(19)
|
10.70
|
Agreement - General Terms and Conditions with EBI Comm, Inc., dated January 1, 2006.(21)
|
10.71
|
Asset Purchase Agreement with Canufly.net, Inc., dated January 10, 2006.(21)
|
10.72
|
Stock Purchase Agreement dated May 10, 2006, by and among the Company, Story Telecom, Inc., Story Telecom Limited, Story Telecom (Ireland) Limited, Nir Davison, and Trecastle Holdings Limited. (23)
|
10.73
|
Agreement dated May 25, 2006, by and among the Company and the shareholders of Equitalk.co.uk Limited. (24)
|
10.74
|
Securities Purchase Agreement, dated June 19, 2006, by and between the Company and the Purchasers. (25)
|
10.75
|
Registration Rights Agreement, dated June 19, 2006, by and between the Company and the Purchasers. (25)
|
10.76
|
Common Stock Purchase Warrant, dated June 19, 2006, by the Company in favor of the Purchasers.(25)
|
10.77
|
Escrow Agreement, dated June 19, 2006, by and between the Company, the Escrow Agent, and the Purchasers. (25)
|
10.78
|
Form of Indemnification Agreement between the Company and its Directors and Officers.(27)
|
10.79
|
Agreement to Purchase Promissory Note dated October 31, 2005, with Randall Wade James Tricou.(27)
|
10.80
|
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Tricou Construction. (27)
|
10.81
|
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Bon Aire Estates. (27)
|
10.82
|
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Bon Aire Utility. (27)
|
10.83
|
Agreement to Purchase Promissory Note dated February 3, 2006, with Danny Acosta.(27)
|
10.84
|
Letter Agreement dated November 15, 2005, with Oberon Securities, LLC.(27)
|
10.85
|
Letter Agreement dated June 15, 2006, with Oberon Securities, LLC.(27)
|
10.86
|
Second Amendment to Agreement and Plan of Merger (to acquire WS Telecom, Inc.), dated June 28, 2006. (27)
|
10.87
|
General Contract for Services dated January 1, 2005, by and between the Company and Swiftnet Limited. (27)
|
10.88
|
Service Agreement dated December 6, 2005, by and between the Company and Elite Financial Communications Group, LLC. (27)
|
10.89
|
Agreement for Market Making in Securities dated July 31, 2006, by and between the Company and Excellence Nessuah Stock Exchange Services Ltd. (27)
|
10.90
|
Shareholders Loan Agreement, dated September 27, 2006, by and between Auracall Limited, Swiftnet Limited, and Dan Kirschner. (28)
|
10.91
|
Service Agreement, dated November 7, 2006, by and between the Company and Institutional Marketing Services, Inc. (28)
|
10.92
|
Consultancy Agreement, dated November 20, 2006, by and between the Company and Crestview Capital Partners, LLP. (29)
|
10.93
|
Agreement dated December 24, 2006, by and between the Company, Halman-Aldubi Provident Funds Ltd., and Halman-Aldubi Pension Funds Ltd. [translation from Hebrew]. (31)
|
10.94
|
First Amendment to Financial Services and Business Development Consulting Agreement dated February 8, 2007, by and between the Company and Dionysos Investments (1999) Ltd. (33)
|
10.95
|
Agreement dated February 8, 2007, by and between the Company, Swiftnet Limited, Campbeltown Business, Ltd., and Mr. Abraham Keinan. (33)
|
10.96
|
First Amendment to General Contract for Services, dated March 14, 2007, by and between the Company and Swiftnet Limited. (34)
|
10.97
|
Employment Agreement, dated March 28, 2007, between Swiftnet Limited and Abraham Keinan.(34)
|
10.98
|
Consulting Agreement, dated March 28, 2007, between the Company and Abraham Keinan. (34)
|
10.99
|
Employment Agreement, dated March 28, 2007, between Swiftnet Limited and Guy Nissenson.(34)
|
10.100
|
Consulting Agreement, dated March 28, 2007, between the Company and Guy Nissenson.(34)
|
10.101
|
Settlement Agreement and Release dated May 31, 2007, by and among Embarq Logistics, Inc, Xfone USA, Inc. and the Company. (35)
|
10.102
|
Promissory Note dated May 31, 2007, by Xfone USA, Inc.(35)
|
10.103
|
Parent Guarantee dated as of May 31, 2007 by the Company in favor of Embarq Logistics, Inc.(35)
|
10.104
|
Share Purchase Agreement dated August 15, 2007, by and between Dan Kirschner, as Seller, Swiftnet Limited, as Buyer, and Xfone, Inc. (36)
|
10.105
|
Inter-Company Loan Agreement dated August 15, 2007, by and between Auracall Limited, as Lender, and Swiftnet Limited, as Borrower. (36)
|
10.106
|
Stock Purchase Agreement dated August [20], 2007, by and among the Company, NTS Communications, Inc., and the Shareholders of NTS Communications, Inc. (37)
|
10.107
|
Letter of Joint Venture dated June 15, 2007, by and among the Company and NTS Holdings, Inc.(37)
|
10.107.1
|
Form of Free Cash Flow Participation Agreement to be Entered into between the Company and NTS Holdings, Inc. Upon Consummation of the Acquisition. (37)
|
10.107.2
|
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Barbara Baldwin upon Consummation of the Acquisition. (37)
|
10.107.3
|
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Jerry Hoover upon Consummation of the Acquisition. (37)
|
10.107.4
|
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Brad Worthington upon Consummation of the Acquisition. (37)
|
10.108
|
Employment Contract signed on August 26, 2007, by and between the Company’s Israeli based Subsidiary Xfone 018 ltd. and Roni Haliva. (38)
|
10.109
|
Subscription Agreement for the Purchase of Shares of Common Stock of the Company Dated October 23, 2007. (39)
|
10.110
|
Subscription Agreement for the Purchase of Shares of Common Stock of the Company Dated November 1, 2007. (41)
|
10.111
|
Form of Subscription Agreement for the Purchase of Units Consisting of Two Shares of Common Stock and One Common Stock Purchase Warrant. (42)
|
10.112
|
Form of Common Stock Purchase Warrant.(42)
|
10.113
|
First Amendment to Stock Purchase Agreement.(43)
|
10.114.1
|
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Barbara Baldwin. (44)
|
10.114.2
|
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Jerry Hoover. (44)
|
10.114.3
|
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Brad Worthington .(44)
|
10.115
|
Free cash flow participation agreement dated as of February 26, 2008, by and among Xfone, Inc. and NTS Holdings, Inc. (44)
|
10.116
|
Escrow agreement dated as of February 26, 2008, by and among Xfone, Inc., Chris Chelette, Robert Healea and Kevin Buxkemper the NTS shareholders representatives, and Trustmark National Bank, as Escrow Agent. (44)
|
10.117
|
Release, effective as of February 26, 2008, entered into by each of Barbara Baldwin, Jerry Hoover and Brad Worthington (44)
|
10.118
|
Noncompetition, nondisclosure and nonsolicitation agreement dated as of February 26, 2008, by and among Xfone, Inc., Telephone Electronics Corporation, Joseph D. Fail, Chris Chelette, Robert Healea, Joey Garner, and Walter Frank. (44)
|
10.119
|
Second amendment to stock purchase agreement entered into by each of February 26, 2008 by and among Xfone, Inc., NTS Communications, Inc. and Chris Chelette, Robert Healea and Kevin Buxkemper, as the NTS shareholders representatives. (44)
|
10.120
|
Modification of Financial Consulting Agreement between Xfone, Inc. and Oberon Securities, LLC in connection with NTS Communications Transaction. (45)
|
10.121
|
Fees Due to Oberon Securities, LLC from Xfone, Inc. in connection with services provided in conjunction with the acquisition of NTS Communications, Inc. (45)
|
10.122
|
Agreement of Principles dated March 17, 2008 by and between Xfone 018 Ltd. and Tiv Taam Holdings 1 Ltd. [Free Translation from Hebrew]. (46)
|
10.123
|
Compromise Agreement dated March 25, 2008, between Xfone, Inc., Story Telecom, Inc., Story Telecom Limited, Trecastle Holdings Limited and Nir Davison. (47)
|
10.124
|
Securities Purchase Agreement dated March 25, 2008, between Xfone, Inc., Trecastle Holdings Limited and Nir Davison. (47)
|
10.125
|
Third Amendment to Stock Purchase Agreement entered into as of April 25, 2008 by and among Chris Chelette, Robert Healea and Kevin Buxkemper, as Sellers’ Representative, NTS Communications, Inc. and Xfone, Inc. (48)
|
10.126
|
Irrevocable Option Agreement dated as of July 1, 2008 by and between Abraham Keinan and Guy Nissenson (49)
|
10.127
|
Indenture, entered into on December 13, 2007, as amended and restated on October 27, 2008, between Xfone, Inc. and Ziv Haft Trusts Company Ltd. (free translation from Hebrew). (51)
|
10.128
|
Form of warrant (free translation from Hebrew). (51)
|
10.129
|
Underwriting Agreement between Xfone, Inc., Excellence Nessuah Underwriting (1993) Ltd. and The First International & Co. - Underwriting and Investments Ltd., dated November 2, 2008 (free translation from Hebrew). (52)
|
10.130
|
Market Making Agreement dated December 24, 2008, by and between Xfone, Inc. and Harel Finance Trade & Securities Ltd. [Free translation from Hebrew] (54)
|
10.131
|
Second Amendment to Financial Services and Business Development Consulting Agreement dated January 15, 2009, by and between Xfone, Inc. and Dionysos Investments (1999) Ltd. (55)
|
10.132
|
Employment Agreement between NTS Communications, Inc. and Niv Krikov dated July 1, 2009. (59)
|
10.133
|
Agreement dated November 20, 2009 between Xfone, Inc., David Sela and Blokshtil Ltd. (English translation). (60)
|
10.134
|
Loan Agreement dated as of December 10, 2009, between Swiftnet Limited, Iddo Keinan, Xfone, Inc., Auracall Limited, Equitalk.co.uk Limited and Story Telecom Limited. (61)
|
10.135
|
General Release and Settlement Agreement dated December 28, 2009 between Xfone, Inc., and the selling shareholders of NTS Communications, Inc. (62)
|
10.136
|
Agreement dated January 29, 2010 by and between Xfone, Inc., Abraham Keinan, and AMIT K Limited. (63)
|
10.137
|
Agreement dated January 29, 2010 by and between Xfone, Inc. and Abraham Keinan. (63)
|
10.138
|
Agreement dated January 29, 2010 by and between Abraham Keinan, Guy Nissenson and Campbeltown Business Ltd. (63)
|
10.139
|
Securities Purchase Agreement dated effective as of March 23, 2010. (64)
|
10.140
|
Form of Subscription Agreement dated as of March 23, 2010. (64)
|
10.141
|
Contract dated May 14, 2010 by and between Xfone, Inc., Newcall Ltd., Margo Pharma, Ltd., and Marathon Telecom Ltd. [English translation] (65)
|
10.142
|
Employment Agreement entered into on June 30, 2010 between Xfone, Inc. and Guy Nissenson [Free translation from Hebrew] (66)
|
10.143
|
First Amendment to Consulting Agreement dated June 30, 2010 between Xfone, Inc. and Guy Nissenson (66)
|
16.2
|
Letter dated June 1, 2009 from Stark Winter Schenkein & Co., LLP to the Securities and Exchange Commission. (58)
|
21.1
|
List of Subsidiaries (Amended as of April 2009) (57)
|
|
(1)
|
Denotes previously filed exhibits: filed on August 10, 2001 with Xfone, Inc.’s SB-2 Registration Statement.
|
(2)
|
Denotes previously filed exhibits: filed on October 16, 2001 with Xfone, Inc.’s SB-2/Amendment 1 Registration Statement.
|
|
(5)
|
Denotes previously filed exhibit: filed on March 3, 2003 with Xfone, Inc.’s SB-2/Post Effective Amendment 2 Registration Statement.
|
|
(6)
|
Denotes previously filed exhibit: filed on April 15, 2004 with Xfone’s, Inc. SB-2 Amendment 1 Registration Statement.
|
|
(7)
|
Denotes previously filed exhibit: filed on June 1, 2004 with Xfone, Inc.’s Form 8-K.
|
|
(8)
|
Denotes previously filed exhibit: filed on June 7, 2004 with Xfone, Inc.’s SB-2/Amendment 2 Registration Statement.
|
|
(9)
|
Denotes previously filed exhibit: filed on August 11, 2004 with Xfone’s, Inc. SB-2 Amendment 3 Registration Statement.
|
|
(10)
|
Denotes previously filed exhibit: filed on September 13, 2004 with Xfone’s, Inc. SB-2 Amendment 4 Registration Statement.
|
|
(11)
|
Denotes previously filed exhibits: filed on October 4, 2004 with Xfone, Inc.’s Form 8-K
|
|
(12)
|
Denotes previously filed exhibits: filed on November 29, 2004 with Xfone, Inc.’s Form 8-K.
|
|
(13)
|
Denotes previously filed exhibits; filed on March 31, 2005 with Xfone, Inc.’s Form 10-KSB.
|
|
(14)
|
Denotes previously filed exhibit: filed on August 22, 2005 with Xfone, Inc.’s Form 8-K.
|
|
(15)
|
Denotes previously filed exhibit: filed on August 31, 2005 with Xfone, Inc.’s Form 8-K.
|
|
(16)
|
Denotes previously filed exhibits: filed on October 3, 2005 with Xfone, Inc.’s Form 8-K.
|
|
(17)
|
Denotes previously filed exhibits: filed on October 11, 2005 with Xfone, Inc.’s Form 8-K/A #1.
|
|
(18)
|
Denotes previously filed exhibits: filed on November 29, 2005 with Xfone, Inc.’s Form 8-K.
|
|
(19)
|
Denotes previously filed exhibit: filed on January 23, 2006 with Xfone, Inc.’s Form 8-K/A #3.
|
|
(21)
|
Denotes previously filed exhibit: filed on January 31, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(23)
|
Denotes previously filed exhibit: filed on May 16, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(24)
|
Denotes previously filed exhibit: filed on May 30, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(25)
|
Denotes previously filed exhibits: filed on June 20, 2006 with Xfone, Inc.’s Form 8-K.
|
(27)
|
Denotes previously filed exhibits: filed on July 31, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(28)
|
Denotes previously filed exhibits: filed on November 14, 2006 with Xfone, Inc.’s Form 10-QSB.
|
|
(29)
|
Denotes previously filed exhibit: filed on November 22, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(31)
|
Denotes previously filed exhibit: filed on December 28, 2006 with Xfone, Inc.’s Form 8-K.
|
|
(33)
|
Denotes previously filed exhibits: filed on February 8, 2007 with Xfone, Inc.’s Form 8-K.
|
|
(34)
|
Denotes previously filed exhibits; filed on March 30, 2007 with Xfone, Inc.’s Form 10-KSB.
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(35)
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Denotes previously filed exhibits: filed on May 31, 2007 with Xfone, Inc.’s Form 8-K.
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(36)
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Denotes previously filed exhibits: filed on August 15, 2007 with Xfone, Inc.’s Form 8-K.
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(37)
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Denotes previously filed exhibits: filed on August 22, 2007 with Xfone, Inc.’s Form 8-K.
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(38)
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Denotes previously filed exhibit: filed on August 27, 2007 with Xfone, Inc.’s Form 8-K.
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(39)
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Denotes previously filed exhibit: filed on October 23, 2007 with Xfone, Inc.’s Form 8-K.
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(41)
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Denotes previously filed exhibit: filed on November 5, 2007 with Xfone, Inc.’s Form 8-K.
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(42)
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Denotes previously filed exhibits: filed on December 14, 2007 with Xfone, Inc.’s Form 8-K.
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(43)
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Denotes previously filed exhibit: filed on February 14, 2008 with Xfone, Inc.’s Form 8-K.
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(44)
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Denotes previously filed exhibits: filed on February 26, 2008 with Xfone, Inc.’s Form 8-K.
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(45)
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Denotes previously filed exhibits: filed on March 6, 2008 with Xfone, Inc.’s Form 8-K.
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(46)
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Denotes previously filed exhibit: filed on March 17, 2008 with Xfone, Inc.’s Form 8-K.
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(47)
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Denotes previously filed exhibits: filed on March 25 with Xfone, Inc.’s Form 8-K.
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(48)
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Denotes previously filed exhibit: filed on May 1, 2008 with Xfone, Inc.‘s Form 8-K.
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(49)
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Denotes previously filed exhibit: filed on July 1, 2008 with Xfone, Inc.‘s Form 8-K.
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(51)
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Denotes previously filed exhibit: filed on October 28, 2008 with Xfone, Inc.‘s Form 8-K.
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(52)
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Denotes previously filed exhibit: filed on November 4, 2008 with Xfone, Inc.‘s Form 8-K.
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(54)
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Denotes previously filed exhibit: filed on December 24, 2008 with Xfone, Inc.‘s Form 8-K.
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(55)
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Denotes previously filed exhibit: filed on January 16, 2009 with Xfone, Inc.‘s Form 8-K.
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(56)
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Denotes previously filed exhibit: filed on April 1, 2009 with Xfone, Inc.‘s Form 10-K.
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(57)
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Denotes previously filed exhibit: filed on April 30, 2009 with Xfone, Inc.‘s Form 10-K/A.
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(58)
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Denotes previously filed exhibit: filed on June 3, 2009 with Xfone, Inc.‘s Form 8-K/A.
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(59)
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Denotes previously filed exhibit: filed on July 1, 2009 with Xfone, Inc.‘s Form 8-K.
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(60)
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Denotes previously filed exhibit: filed on November 30, 2009 with Xfone, Inc.‘s Form 8-K.
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(61)
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Denotes previously filed exhibit: filed on December 11, 2009 with Xfone, Inc.‘s Form 8-K.
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(62)
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Denotes previously filed exhibit: filed on December 29, 2009 with Xfone, Inc.‘s Form 8-K.
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(63)
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Denotes previously filed exhibits: filed on January 29, 2010 with Xfone, Inc.‘s Form 8-K.
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(64)
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Denotes previously filed exhibits: filed on March 23, 2010 with Xfone, Inc.‘s Form 8-K.
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(65)
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Denotes previously filed exhibits: filed on June 1, 2010 with Xfone, Inc.’s Form 8-K.
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(66)
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Denotes previously filed exhibits: filed on June 30, 2010 with Xfone, Inc.’s Form 8-K.
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