Second Amendment to Agreement and Plan of Merger
Exhibit
10.86
Second
Amendment to
This
Second Amendment to Agreement and Plan of Merger ("Second Amendment") is
executed as of June 28, 2006, to be effective as of March 9, 2005, by and among
WS Telecom, Inc. ("WST"), Xfone, Inc. (the "Parent"), Xfone USA, Inc. (the
"Subsidiary"), and Xxxx Xxxxxxx and Xxx Xxxxxxx (collectively the
"Principals").
WHEREAS,
WST, the Parent, Subsidiary and Principals entered into that certain Agreement
and Plan of Merger dated as of May 28, 2004 (the "Merger Agreement") and desire
to amend the Merger Agreement in order to clarify ARTICLE VIII - GENERAL
PROVISIONS - Section VIII.11 - Principal’s Post Closing Sale Restrictions
("Section VIII.11"), and in particular to clarify the process to calculate
the
amount of shares that the Principals may sell or trade.
NOW,
THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the parties do hereby agree as follows (capitalized
terms used herein have the same meaning as defined in the Merger Agreement,
unless otherwise specified herein).
1. Amendment.
Section
VIII.11 is hereby amended to clarify the process to calculate the amount of
shares that the Principals may sell or trade. The first sentence of Section
VIII.11 for the Principal’s is hereby amended as follows:
“Xxxx
Xxxxxxx agrees that the total shares of common stock of the Parent sold by
him
in any calendar quarter shall not exceed 3.5% of the total trading volume of
the
Parent Common Stock traded during the previous calendar quarter. Xxx Xxxxxxx
agrees that the total shares of common stock of the Parent sold by him in any
calendar quarter shall not exceed 1.5% of the total trading volume of the Parent
Common Stock traded during the previous calendar quarter. For the purpose of
this Section, a calendar quarter shall mean a period of three consecutive months
ending on the last day of any of the following months: March, June, September,
and December.”
2. Ratification.
The
Merger Agreement as amended hereby is ratified and affirmed, and except as
expressly amended hereby, all other terms and provisions of the Merger Agreement
(including the last sentence of Section VIII.11) remain unchanged and continue
in full force and effect.
3. Execution.
This
Second Amendment may be executed simultaneously 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.
Executed
as of the day and year first above written.
XFONE,
INC. WS
TELECOM, INC.
By:
/s/
Xxx Xxxxxxxxx By:
/s/
Xxxx Xxxxxxx
Xxx
Xxxxxxxxx, President and CEO Xxxx
Xxxxxxx, President and CEO
XFONE
USA, INC. PRINCIPALS:
By:
/s/
Xxxx Xxxxxxx /s/
Xxxx Xxxxxxx
Xxxx
Xxxxxxx, President and CEO Xxxx
Xxxxxxx
/s/
Xxx
Xxxxxxx
Xxx
Xxxxxxx
