SECURITIES PURCHASE AGREEMENT
Exhibit
10.124
This
Securities Purchase Agreement (this “Agreement”) is made and entered into as of
March 25, 2008, by and among (1) Xxx Xxxxxxx, of Garden Flat,
00 Xxxxx Xxxx Xxxx, Xxxxxx, XX0 0XX, XX (“Xxxxxxx”), (2) Trecastle Holdings Limited, a
BVI corporation owned and controlled by Xxxxxxx, of 3152, Road Town, Tortola BVI
(“Trecastle”), and (3) Xfone,
Inc., a Nevada corporation, with a principal place of business at 0000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000, XXX (“Xfone”).
WHEREAS,
Story Telecom, Inc. (“Story US”) is a Nevada corporation (Corporation Number
C4689-2004); Story Telecom Limited (“Story UK”) is a UK private limited company
(Company Number 4551415); and Story UK is a wholly-owned subsidiary of Story US
(Story US and Story UK referred to herein collectively as “Story Telecom”);
and
WHEREAS,
Xfone has previously entered into a certain Stock Purchase Agreement dated as of
May 10, 2006 (the “May 2006 Stock Purchase Agreement”), with, among others,
Davison, Trecastle, Story US, and Story UK, pursuant to which, among other
things, Xfone purchased 102 shares of the common stock of Story US, thereby
increasing its ownership interest in Story US to approximately 69.6% (142 out of
the 204 outstanding shares of common stock); and which provided for the
continued employment of Xxxxxxx as Managing Director of Story Telecom upon the
terms set forth in the May 2006 Stock Purchase Agreement; and
WHEREAS,
Xxxxxxx is the owner of good and marketable title to twelve (12) shares of the
common stock of Story US (the “Xxxxxxx Shares”) free and clear of all liens,
pledges and encumbrances; and
WHEREAS,
Trecastle is the owner of good and marketable title to fifty (50) shares of the
common stock of Story US (the “Trecastle Shares”) free and clear of all liens,
pledges and encumbrances; and
WHEREAS,
on July 12, 2007, Xxxxxxx was notified of the termination of his employment from
Story UK; and
WHEREAS,
on July 25, 2007, Xfone received notification of a claim filed on July 23, 2007
by Xxxxxxx with the United Kingdom Employment Tribunals against Story
UK, Case No. 3301715/2007, alleging, amongst other
matters, unfair dismissal in respect of his employment as Managing Director (the
“Claim”); and
WHEREAS,
on July 13, 2007, Xfone received a letter from Xxxxxx Xxxxx, UK counsel for
Xxxxxxx and Trecastle, alleging a shareholders oppression claim and an unfair
prejudice claim against Xfone and subsequently a letter from Xxxxxx Xxxxx to
Xfone’s solicitors Xxxxxxx Xxxxx alleging claims of breach of fiduciary duty
against Messrs Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx and Xxxx Xxxxxx (the
“Allegations”); and
WHEREAS,
Xfone, Story US, Story UK, Xxxxxxx and Trecastle have agreed to settle the
Claim, the Allegations and any other disputes amongst them (the “Compromise”)
and in connection therewith have entered into a certain Compromise Agreement
dated as of the date hereof (the “Compromise Agreement”), and
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WHEREAS,
among other things, as consideration for the Compromise, Xxxxxxx and Trecastle
(hereinafter referred to collectively as the “Sellers”) have agreed to sell to
Xfone, and Xfone has agreed to purchase from the Sellers, the Xxxxxxx Shares and
the Trecastle Shares (hereinafter referred to collectively as the “Shares”),
subject to the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as
follows:
SECTION
1. Sale of
Shares.
1.1 Sale of
Shares. Subject to the terms and conditions of this Agreement,
the Sellers agree to sell the Shares, free and clear of all liens and
restrictions, to Xfone for an aggregate purchase price of £270,000 (the
“Purchase Price”). The sale and purchase of the Shares shall take place at the
Closing as described in Section 1.2.
1.2 The
Closing.
(a) At
the Closing to be held on the date hereof (the “Closing”), the Sellers shall
sell, and Xfone shall purchase, the Shares. The Closing shall take place on or
about March 25, 2008 at the offices of Story UK, 000 Xxxx Xxxx, Xxxxxx X00 0XX,
Xxxxxx Xxxxxxx or at such other location as may be agreed upon among Xxxxxxx,
Trecastle and Xfone.
(b) In
furtherance of the transactions described in Section 1.2(a), at the Closing, the
Sellers shall issue and deliver to Xfone certificate(s) for the Shares being
purchased by Xfone at the Closing together with the resignation letter of Xxxx
Xxxxxxx (provided in accordance with Clause 5 below), against payment by Xfone
to the Sellers of the Purchase Price in the form of a SWIFT or CHAPS payment to
a bank account nominated in writing by Xxxxxxx prior to Closing to the order of
the Sellers.
(c) Upon
acquisition of the Shares, Story US will become a wholly-owned subsidiary of
Xfone.
SECTION
2. Representations and
Warranties of the Sellers.
2.1 Representations and
Warranties of Xxxxxxx. Xxxxxxx hereby
represents and warrants to Xfone as follows:
(a) Ownership of Xxxxxxx
Shares. Xxxxxxx is the sole record owner of the Xxxxxxx Shares,
free and clear of all liens, pledges and encumbrances, and no person or entity
has any right or claim to the Xxxxxxx Shares. Upon acquisition of the Xxxxxxx
Shares, Xfone will have acquired good and marketable title to the Xxxxxxx
Shares, free and clear of all liens, pledges and encumbrances whatsoever, except
for any liens, pledges or encumbrances thereafter established by
Xfone.
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(b) Power and
Authority. Xxxxxxx has the right, power and
authority to execute, deliver and perform under this Agreement, and this
Agreement, when executed and delivered by Xxxxxxx, shall constitute a legal,
valid and binding obligation of Xxxxxxx, enforceable against Xxxxxxx in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(c) No Conflicts.
The execution, delivery and performance by Xxxxxxx of this Agreement, and
the consummation of the transactions contemplated hereby, do not and will not
breach or constitute a default under any applicable law or regulation or of any
agreement, judgment, order, decree or other instrument binding on
Xxxxxxx.
(d) No Governmental Consent or
Approval Required. No authorization, consent, approval or other
order of, declaration to, or filing with, any governmental agency or body is
required for or in connection with the valid and lawful authorization,
execution, delivery or performance by Xxxxxxx of this Agreement for the
transactions contemplated hereby.
2.2 Representations and
Warranties of Trecastle. Trecastle hereby represents and warrants to
Xfone as follows:
(a) Organization. Trecastle
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, has all requisite power and authority and has
taken all necessary action required for the due authorization, execution,
delivery and performance of this Agreement, as well as the consummation of the
transactions contemplated hereby.
(b) Authorization.
The execution, delivery and performance by Trecastle of this Agreement
have been duly authorized by all requisite corporate action.
(c) Enforceability. This
Agreement, when executed and delivered by Trecastle, shall constitute a legal,
valid and binding obligation of Trecastle, enforceable against Trecastle in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(d) Ownership of Trecastle
Shares. Trecastle is the sole record owner of the
Trecastle Shares, free and clear of all liens, pledges and encumbrances, and no
person or entity has any right or claim to the Trecastle Shares. Upon
acquisition of the Trecastle Shares, Xfone will have acquired good and
marketable title to the Trecastle Shares, free and clear of all liens, pledges
and encumbrances whatsoever, except for any liens, pledges or encumbrances
thereafter established by Xfone.
(e) No
Conflicts. The execution, delivery and performance by
Trecastle of this Agreement, and the consummation of the transactions
contemplated hereby, do not and will not breach or constitute a default under
any applicable law or regulation or of any agreement, judgment, order, decree or
other instrument binding on Trecastle.
(f) No Governmental Consent or
Approval Required. No authorization, consent, approval
or other order of, declaration to, or filing with, any governmental agency or
body is required for or in connection with the valid and lawful authorization,
execution, delivery or performance by Trecastle of this Agreement for the
transactions contemplated hereby.
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SECTION
3. Representations and
Warranties of Xfone. Xfone hereby represents and
warrants to each of the Sellers as follows:
3.1 Organization. Xfone
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, has all requisite power and authority and has
taken all necessary action required for the due authorization, execution,
delivery and performance of this Agreement, as well as the consummation of the
transactions contemplated hereby.
3.2 Authorization. The
execution, delivery and performance by Xfone of this Agreement have been duly
authorized by all requisite corporate action.
3.3 Enforceability. This
Agreement, when executed and delivered by Xfone, shall constitute a legal, valid
and binding obligation of Xfone, enforceable against Xfone in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
3.4 No
Conflicts. The execution, delivery and performance by
Xfone of this Agreement, and the consummation of the transactions contemplated
hereby, do not and will not breach or constitute a default under any applicable
law or regulation or of any agreement, judgment, order, decree or other
instrument binding on Xfone.
3.4 Investment
Intent. Xfone is acquiring the Shares for investment and not
for, with a view to or in connection with the distribution thereof. The above
sentence, however, shall not limit Xfone’s right to sell the Shares pursuant to
applicable state and federal securities laws.
3.5 No
Brokers. All negotiations relating to this Agreement and
the transactions contemplated hereby have been carried on without the
intervention of any person acting on behalf of Xfone in such manner as to give
rise to any right, interest or valid claim for any brokerage or finder’s
commission, fee or similar compensation.
SECTION
4. Conditions to
Closing.
4.1 Conditions to Xfone’s
Obligations at Closing. The obligations of Xfone to purchase
the Shares at the Closing are subject to the fulfillment, on or before such
Closing, of each of the following conditions, unless otherwise waived by Xfone
in writing:
(a) Representations and
Warranties. The representations and warranties of the Sellers
contained in Section 2 shall be true and correct in all materials respects
as of such Closing.
(b) Performance. The
Sellers shall have performed and complied with all covenants, agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by the Sellers on or before such
Closing.
(c) Compromise
Agreement. Xxxxxxx and Trecastle shall each have executed and
delivered the Compromise Agreement to Story UK or to its UK solicitors, Xxxxxx
Xxxxxxx, and shall otherwise have complied with the terms of the said Compromise
Agreement.
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4.2 Conditions to the Sellers’
Obligations at Closing. The obligations of the Sellers to sell
the Shares at the Closing are subject to the fulfillment, on or before such
Closing, of each of the following conditions, unless otherwise waived by the
Sellers in writing:
(a) Representations and
Warranties. The representations and warranties of Xfone
contained in Section 3 shall be true and correct in all material respects
as of such Closing.
(b) Performance. Xfone
shall have performed and complied with all covenants, agreements, obligations
and conditions contained in this Agreement that are required to be performed or
complied with by Xfone on or before the Closing.
(c) Compromise
Agreement. Story US, Story UK and Xfone shall have executed
and delivered the Compromise Agreement and provided a true copy to the
Sellers.
SECTION
5. Termination of Certain
Provisions of the May 2006 Stock Purchase Agreement and Ancilliary
Matters.
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5.1
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Upon
consummation of the purchase of the Shares contemplated herein, Sections
2.5, 2.6 2.7, 2.8, 4.5, 4.6, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15,
5, 6.1, 6.2, 6.3 and 6.4 to the May 2006 Stock Purchase Agreement shall
terminate, the Sellers and Xfone agree that the terms and provisions of
this Agreement and the Compromise Agreement shall govern from and after
the Closing with respect to the matters included herein and therein. In
the event of any conflict between this Agreement and the Compromise
Agreement, the Compromise Agreement shall
prevail.
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5.2
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Xxxxxxx
shall procure that Xxxx Xxxxxxx shall forthwith resign as a director of
all companies in the Xfone Group in respect of which he has been appointed
a director, such resignation to be in the form set out in the Schedule to
this Agreement. Payment of the sum due in accordance with
Clause 1.2(b) shall not arise until such resignation has been
received.
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SECTION
6. Release; Acknowledgement as
to Possible Claims.
6.1 Effective
upon the Closing, Xxxxxxx, individually and in his capacity as a shareholder
and/or officer and/or director of Trecastle, and Trecastle, do each hereby
irrevocably remise, release and forever discharge Xfone, and its
representatives, officers, directors, employees, agents, attorneys, subsidiaries
(including Story UK and its directors Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx and Xxxx X.
Xxxxxx), affiliates, parents, predecessors, successors and assigns (each a
“Released Party”) from any and all debts, demands, actions, causes of action,
suits, sums of money, contracts, controversies, agreements, promises,
executions, liabilities, and any and all other claims of any kind, nature and
description whatsoever, both in law and equity (whether known or unknown,
tangible or inchoate, asserted or unasserted), which Xxxxxxx and Trecastle or
their successors or assigns now have or ever had from the beginning of the world
to the date of the Closing, which shall include, without limitation, any
obligations (including without limitation any future obligations) under the May
2006 Stock Purchase Agreement. Xxxxxxx and Trecastle agree not to
commence or maintain any lawsuit against any Released Party and agree that such
commitment may be enforced by an action for injunctive relief with respect
thereto. In connection therewith and without prejudice to the generality of the
above, immediately after the Closing: (i) Xxxxxxx shall execute and cause to be
filed with the United Kingdom Employment Tribunals a notice of withdrawal of the
Claim together with a request that the Claim be dismissed without costs, in
substantially the form set out in Schedule 4 to the Compromise Agreement and
(ii) Xxxxxxx and Trecastle shall instruct Xxxxxx Xxxxx to inform Xfone that
Xxxxxxx and Trecastle have withdrawn the Allegations with prejudice and without
costs. Notwithstanding the foregoing, the covenants, duties and obligations of
all parties under this Agreement shall survive this release and shall be fully
enforceable in accordance with its terms.
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6.2 Effective
upon the Closing, Xfone acknowledges that on the basis of the facts and
circumstances of which it is aware immediately prior to the Closing, Xfone is
not intending to commence proceedings against either Xxxxxxx or Trecastle in
respect of such acts of Xxxxxxx and Trecastle, in their capacities as the legal
or beneficial owners of the Shares, of which Xfone is aware and it waives any
rights it might otherwise have had to initiate claims against either Xxxxxxx or
Trecastle in respect of such acts.
SECTION
7. Protection of
Goodwill.
7.1 Definitions. For
the purpose of this Section 7, the following terms shall have the following
meanings:
(a) “Restricted
Clients” shall mean any person or entity with whom Xxxxxxx has had dealings or
of whom Xxxxxxx has confidential information and who is:
(i) a
person or entity who during the Relevant Period has been a customer of the Xfone
Group or has employed its services or who has been solicited by the Xfone Group
with a view to becoming a customer of any member of the Xfone Group;
or
(ii) to
the extent not already included in (i) above, any person or entity who has been
a client or prospective client of the Restricted Business during the Relevant
Period.
(b) “Relevant
Period” shall mean the period of twenty-four (24) months prior to the date of
execution of this Agreement.
(c) “Restricted
Business” shall mean such part of the business of any member of the Xfone Group
concerned with providing telecommunication and/or data services and/or products
for residential and/or business customers of a type undertaken by Xxxxxxx whilst
he was employed by Story UK.
(d) “Restricted
Supplier” shall mean any supplier to the Restricted Business whose services have
a material impact on the ability of any member of the Xfone Group to undertake
business and with whom Xxxxxxx had dealings during the Relevant
Period.
(e) “Restricted
Territories” shall mean UK, USA and Israel.
(f) “Xfone
Group” shall mean Xfone, Story US, Story UK and any of their respective
subsidiaries
7.2 Restriction. Xxxxxxx
hereby undertakes and agrees that without the written consent of Xfone and in
relation to any business in respect of which he is concerned, whether directly
or indirectly, and whether as employee, director, consultant, agent, shareholder
or otherwise, which is competing with the Restricted Business in the Restricted
Territories:
(a) for
a period of two (2) years from the Closing, he will not in any capacity
whatsoever directly or indirectly carry on or assist in carrying on or be
engaged, concerned or interested in any activity or undertaking which is the
same as, substantially similar to, or competes directly or indirectly with the
business of the Xfone Group within the Restricted Territories with respect to
the Restricted Business; and
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(b) for
a period of two (2) years from the Closing, he will not for the purpose of any
business supplying services and/or products competing with the Restricted
Business, conduct any business, perform any services for or canvas, solicit,
approach or endeavour to entice away from the Xfone Group (otherwise than by
general advertising) or otherwise deal with any of the Restricted
Clients;
(c) for
a period of two (2) years from the Closing, he will not for the purpose of any
business competing with the Restricted Business of any member of the Xfone Group
approach, solicit or endeavour to entice away from the Xfone Group, employ or
offer employment to, or employ or engage any employee with whom Xxxxxxx had
dealings during the Relevant Period and who is a member of the management team
of the Xfone Group, and who is employed at the date of this Agreement and/or at
the Closing or who was employed at any time during the Relevant Period, nor do
any act or thing likely to have the effect of causing any such employee to
terminate his or her employment with any member of the Xfone Group, as
applicable, whether or not such employee would thereby breach his contract of
employment; and
(d) for
a period of two (2) years from the Closing, he will not for the purpose of any
business competing with the Restricted Business of any member of the Xfone
Group, seek to entice away from any member of the Xfone Group, or otherwise
solicit, or interfere with, the relationship between any member of the Xfone
Group and any Restricted Supplier;
(e) he
will not at any time in connection with any business carried on by him or
otherwise howsoever use directly or indirectly or authorise any person to use
directly or indirectly any of the intellectual property rights including any of
the names or words “Xfone”; “Story Telecom” or any names or
words similar to or likely to be confused with them or use any distinctive xxxx,
style or logo used by the Xfone Group or any xxxx, style or logo similar to or
likely to be confused with any of them in any manner which is likely to or may
result in confusion between or other association with the business, goods,
services or other activities of the Xfone Group including by using such names as
part of a corporate name, trade name or otherwise.
(f) Nothing
in this Section 7 shall prohibit Xxxxxxx from owning not more than five percent
(5%) of any class of the issued share capital of a company which is involved in
the Restricted Business.
(g) Each
of the undertakings and agreements contained in this Section 7 is separate and
severable and shall be construed on that basis. In the event that any of such
undertakings and agreements is found to be void but would be valid if some part
of it were deleted or if the period or extent of it were reduced such
undertaking shall apply with such modification as may be necessary to make it
valid and effective.
(h) It
is expressly agreed that all subsidiaries of Xfone are intended to be
beneficiaries of this Agreement, shall be deemed to be intended beneficiaries
and may enforce its terms as if they were parties hereto.
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SECTION
8. Miscellaneous.
8.1 Confidentiality. Except
so far as may be required by law, and in such circumstances only after prior
consultation with Xfone, neither Xxxxxxx nor Trecastle shall at any time
disclose to any person or use to the detriment of Xfone or any of its
subsidiaries (including Story US and Story UK) any trade secret or other
confidential information which Xxxxxxx or Trecastle hold relating to the
business or affairs of Xfone or any of its subsidiaries (including Story US and
Story UK).
8.2 Public Announcements and
Reports. Any voluntarily public announcement relating to
this Agreement or the transactions contemplated hereby shall be mutually agreed
by the parties to this Agreement. Notwithstanding anything to the contrary
contained in this Agreement, Xfone shall be allowed to file with the U.S.
Securities and Exchange Commission and the Israel Securities Authority any
public report, and to make any disclosure, relating to this Agreement or the
transactions contemplated hereby which is required under any applicable law,
without the prior agreement of Xxxxxxx or Trecastle,
8.3 Further
Assurances. Each party hereto, at the reasonable request of
another party hereto, shall execute and deliver such other instruments and do
and perform such other acts and things as may be necessary or desirable for
effecting completely the consummation of this Agreement and the transactions
contemplated hereby.
8.4 Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the same shall be in writing and signed by the Sellers and
Xfone.
8.5 Notices. Any
notice required or permitted hereunder shall be given in writing (unless
otherwise specified herein) and shall be deemed effectively given upon (i)
personal delivery, (ii) two business days after deposit with Federal Express or
another nationally recognized overnight courier service, (iii) five business
days after deposit in the United States Postal Service, sent certified mail
return receipt requested, addressed to each of the other parties thereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten days advance written notice to each of the other parties
hereto, or (iv) the same day upon transmission by means of facsimile
transmission or electronic mail (if attached in a commonly readable format and
the sender has received no generated notice that the email message has not been
successfully delivered).
If to
Xxxxxxx:
Garden
Xxxx
00 Xxxxx
Xxxx Xxxx
Xxxxxx
XX0 0XX
Facsimile: (none)
Email:
xxxxxxxxxx@xxxxx.xxx
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with a
copy to:
Levenes
Ashley
House
000-000
Xxxx Xxxx
Xxxx
Xxxxx
Xxxxxx
X00 0XX
Attn:
Xxxxxx Onwukue
Facsimile: 020 8889 6395
Email: xxxxxxxx@xxxxxxx.xx.xx
If to
Trecastle:
3152,
Road Town
Tortola
BV1
Attn:
_____________________
Facsimile: (none)
Email: (none)
with a
copy to:
Levenes
Ashley
House
000-000
Xxxx Xxxx
Xxxx
Xxxxx
Xxxxxx
X00 0XX
Attn:
Xxxxxx Onwukue
Facsimile: 020 8889 6395
Email: xxxxxxxx@xxxxxxx.xx.xx
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If to
Xfone:
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000, XXX
Attn: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
Email: xxxx@xxxxx.xxx
with a copy to:
Xxxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxxx X. Xxxxxx,
Esq.
Facsimile: 212-980-5192
Email: xxxxxxx@xxxxxxxxxxxxx.xxx
The designation of any such address may
be changed at any time by any party upon written notice given pursuant to the
requirements of this Section.
8.6 Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties to this
Agreement.
8.7 Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. Such counterparts may be
delivered by facsimile transmission or other electronic
transmission.
8.8 Governing
Law. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY,
ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF
MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN, AND
HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY
HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF TO
SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND
AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS
AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT
IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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8.9 Cumulative
Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
8.10 Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction.
8.11 Survival of
Provisions. The representations and warranties made herein by
Xxxxxxx and Trecastle shall survive the Closing and the delivery of the Shares.
The obligations of the parties under this Agreement (to the extent the same are,
by mutual agreement, not performed at Closing), survive the Closing and the
delivery of the Shares.
87.12 Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
[Remainder
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SCHEDULE
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Resignation
as a director
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The
Directors of
Story
Telecom, Inc.
Story
Telecom Limited
[any
other companies of which Xxxx Xxxxxxx is a director]
[Date]
Dear
Sirs
Story
Telecom, Inc. and Story Telecom Limited (together the “Story Telecom
Group”)
Yours
faithfully
Signed
and delivered as a deed by
IIAN
GARMIZA [SIGNATURE]
in the
presence of [NAME OF WITNESS]
IN
WITNESS WHEREOF, the parties have executed this Securities Purchase Agreement as
of the date first written above.
XFONE, INC.
By: /s/ Xxx
Xxxxxxxxx
Name:
Xxx Xxxxxxxxx
Title:
President & CEO
XXX XXXXXXX
/s/ Xxx
Xxxxxxx
TRECASTLE HOLDINGS
LIMITED
By: /s/ Xxx
Xxxxxxx
Name:
Xxx Xxxxxxx
Title:
-12-
