-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N+0fDRobfOBI4DhKOen8Moqpm6Crwr+V4MKKkbLcDKrGJV6ZQw3NnJbwp3ngp/nQ 4mIvC0LbST7cSfGox1staw== 0001108017-08-000268.txt : 20080501 0001108017-08-000268.hdr.sgml : 20080501 20080501153809 ACCESSION NUMBER: 0001108017-08-000268 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20080501 ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20080501 DATE AS OF CHANGE: 20080501 FILER: COMPANY DATA: COMPANY CONFORMED NAME: XFONE INC CENTRAL INDEX KEY: 0001126216 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 113618510 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32521 FILM NUMBER: 08794497 BUSINESS ADDRESS: STREET 1: 2506 LAKELAND DRIVE STREET 2: SUITE 100 CITY: FLOWOOD STATE: MS ZIP: 39232 BUSINESS PHONE: 6019833800 MAIL ADDRESS: STREET 1: 2506 LAKELAND DRIVE STREET 2: SUITE 100 CITY: FLOWOOD STATE: MS ZIP: 39232 8-K 1 xfone8k.htm xfone8k.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): May 1, 2008 (April 25, 2008)
 
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)
 
2506 Lakeland Drive, Suite 100
Flowood, MS  39232
(Address of principal executive offices) (Zip Code)
 
601-983-3800
(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:
 
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
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Item 8.01.                      Other Events

On April 25, 2008, Xfone, Inc. (the “Registrant”) entered into a Third Amendment to Stock Purchase Agreement (the “Third Amendment”) with NTS Communications, Inc. (“NTS”) and representatives of the former equity owners of NTS who were the sellers (the “Sellers”) under the original Stock Purchase Agreement dated as of August 22, 2007 between the Registrant, NTS and the Sellers (the “Original Agreement”). 

Pursuant to the Third Amendment, the parties agreed to an extension of time for the calculation and payment of the post closing working capital  adjustment under  the Original Agreement and  agreed that the Registrant would obtain and deliver to the Sellers' Representatives by May 30, 2008 an audit report with respect to the balance sheet of NTS as of the closing of the acquisition, which occurred on February 26, 2008 (the "Closing"), together with  the Registrant's calculation of Working Capital (as such term is defined in the Original Agreement) as of the Closing and any amounts to be paid by the Registrant or the Sellers. The Sellers would have the right to make any objections to the Registrant's working capital determination by June 20, 2008, and in the event that the Registrant and Sellers can not agree as to the post closing working capital adjustment by June 30, 2008, then the parties shall submit the determination of the post closing working capital adjustment to arbitration in accordance with the Original Agreement.  

Additional information relating to the Original Agreement, the first and second amendments to the Original Agreement and the Closing is available in the Registrant’s Current Reports on Form 8-K filed with the SEC on August 22, 2007, January 15, 2008, February 14, 2008 and February 26, 2008.

A copy of the Third Amendment is attached hereto as Exhibit 10.125 and is incorporated herein by reference.

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 an exhibit to this Current Report on Form 8-K.

Item 9.01                      Financial Statements and Exhibits

(a)  
Not applicable.
(b)  
Not applicable.
(c)  
Not applicable.
(d)  
Exhibits:


 
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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.


Date:  May 1, 2008
Xfone, Inc.
 
 
By:
/s/ Guy Nissenson
   
Guy Nissenson
President, Chief Executive Officer and Director

 
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INDEX TO EXHIBITS



 
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EX-10.125 2 ex10125.htm ex10125.htm
Exhibit 10.125
 
Extension of Time for Agreement On
Working Capital Calculation at Closing
 
This Third Amendment (“Third Amendment”) to the Stock Purchase Agreement, dated as of August 22, 2007, as amended (the “SPA”) is entered into as of April 25, 2008 by and among Chris Chelette, Robert Healea and Kevin Buxkemper, in their capacity as Sellers’ Representative and for and on behalf of each of the Sellers party to the SPA, NTS Communications, Inc. (the “Company”) and Xfone, Inc. (“Purchaser”).  Capitalized terms used herein have the same meaning as defined in the SPA, unless otherwise specified herein.
 
WHEREAS, the parties to this Third Amendment represent (or are authorized to represent) all parties to the SPA; and
 
WHEREAS, Chris Chelette, Robert Healea and Kevin Buxkemper, in their capacity as Sellers’ Representative and for and on behalf of each of the Sellers, the Company and Purchaser have agreed that it is in the best interest of all parties to the SPA to mutually extend the date of certain requirements of the SPA: and
 
WHEREAS, the Closing of the transaction which was contemplated under the SPA took place on February 26, 2008; and
 
WHEREAS, Section 2.2(e)(i) of the SPA provides that the Purchaser shall deliver to the Sellers a balance sheet of the Company as of the Closing Date, together with a calculation of the Working Capital as of the Closing and any amounts to be paid by Purchaser or Sellers; and
 
WHEREAS, the Purchaser has provided to the Sellers Representatives an unaudited balance sheet and Working Capital calculations as of the Closing Date in a timely manner;
 
WHEREAS, the Purchaser has determined it has the need for an independent audit of the balance sheet as of the Closing Date; and
 
WHEREAS, the parties mutually agree that it would be in the best interest of all parties concerned to use the audited balance sheet as of the Closing for purposes of determining any amounts to be paid by Purchaser or Sellers in accordance with Section 2.2(e)(i) of the SPA;
 
NOW, THEREFORE, in consideration of the foregoing recitals, the parties do hereby agree to an extension of time for compliance with Section 2.2(e)(i) of the SPA as follows.
 
 
 

 
1. Notwithstanding anything contained in Section 2.2(e)(i) of the SPA to the contrary, the parties hereto agree as follows:
    
            (a)           On, or before May 30, 2008, the Purchaser shall deliver to the Sellers an independent audit report of Phillips & Associates, C.P.A’s as of February 26,, 2008 with respect to the Company’s balance sheet as of Closing, together with a calculation of the Working Capital as of the Closing and any amounts to be paid by Purchaser or Sellers.
 
            (b)           On, or before June 20, 2008, the Sellers shall indicate agreement or disagreement with such balance sheet, Working Capital calculations and calculation of any amounts to be paid by the Purchaser or the Sellers, and shall use commercially reasonable efforts to resolve any disagreements by negotiations between the Sellers’ Representatives and the President of the Purchaser.
 
            (c)           In the event that the Sellers’ Representatives and the President of the Purchaser shall be unable to agree by June 30, 2008 on the balance sheet at Closing, the Working Capital at Closing and/or the calculation and any amounts to be paid, the Purchaser and Sellers’ Representative shall submit to binding arbitration in accordance with the arbitration procedures outlined in Section 2.2(e)(i) of the SPA.
 
2. Ratification.  The SPA as amended hereby is ratified and affirmed, and except as expressly amended hereby, all other terms and provisions of the SPA remain unchanged and continue in full force and effect.
 
3. Execution.  This Third Amendment may be executed in multiple counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.  The parties hereto agree to accept facsimile signatures as an original signature.
 
[SIGNATURE PAGES FOLLOW]
 
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This agreement is entered into and effective as of April 25, 2008
 
 XFONE, INC.
 
  SELLERS’ REPRESENTATIVE FOR AND ON BEHALF OF THE SELLERS:  
By: /s/ Guy Nissenson
 
 
 
 
Guy Nissenson, President and CEO  
 
 
   
 
 
/s/ Chris Chelette
 
 
 
  Chris Chelette    
 NTS COMMUNICATIONS, INC.
 
       
By: /s/ Barbara Baldwin
       
Barbara Baldwin, President and CEO        
    /s/ Robert Healea    
 
 
Robert Healea
 
 
         
         
 
  /s/ Kevin Buxkemper    
    Kevin Buxkemper    

 
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