AGREEMENT
AGREEMENT
This
agreement (this
"Agreement") is
made and entered into this 29 day of January 2010, by and between Xxxxxxx Xxxxxx
("Keinan"), Xxx Xxxxxxxxx ("Xxxxxxxxx") and Campbeltown Business Ltd.
(“Campbeltown “).
W
I T N E S S E T H :
WHEREAS, on January 29, 2010,
Xxxxxx, XXXX K LTD (a company owned and controlled by Keinan) and Xfone, Inc.
(the “Company” or “Xfone”) have entered into an agreement (the “Purchase
Agreement”) pursuant to which Keinan shall purchase from Xfone, through AMIT,
all of the capital stock of Swiftnet Limited, Auracall Limited, Xxxxxxxx.xx.xx
Limited, Story Telecom, Inc. and Story Telecom Limited (the “Transaction”);
and
WHEREAS, as of the date of
this Agreement, Keinan is the beneficial owner of 3,208,000 shares of common
stock of Xfone (“Keinan’s Shares”); and
WHEREAS, Xxxxxxxxx,
Campbeltown and Keinan have entered into a voting agreement dated September 28,
2004 (the “Voting Agreement”), and, subject to and upon the consummation of the
Transaction, they wish to terminate the Voting Agreement and simultaneously
replace it with an irrevocable written appointment by Keinan of Xxxxxxxxx, to
act as Keinan’s proxy in respect of Keinan’s Shares and any other shares of
Xfone Keinan may own or hold thereafter, in the form agreed upon by the Parties
(the “Irrevocable Proxy”).
NOW, THEREFORE, in
consideration of the mutual covenants contained in this Agreement, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Keinan, Xxxxxxxxx and Campbeltown (the Parties") agree as
follows:
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1.
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Subject
to and upon the consummation of the Transaction, the Voting Agreement
shall be terminated, effective
immediately.
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2.
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The
Irrevocable Proxy shall not be revocable or revoked by Keinan and shall be
binding upon his successors and assigns, provided, however, that the
Irrevocable Proxy shall have no force and effect, in respect of such
shares sold by Keinan in an arm’s length sale (in good faith) of the
shares to a third party that is not an Affiliate (as defined in the
Irrevocable Proxy) or related party of Keinan. The Irrevocable
Proxy shall remain in effect for as long as Xxxxxxxxx is the record or
beneficial holder of one hundred
thousand (100,000) or more shares of the Company’s common stock or a
director or an executive officer of the Company. In the event that
Xxxxxxxxx is not the record or beneficial holder of any shares of the
Company’s common stock and has
ceased to be a director and an executive officer of the Company, the
Irrevocable Proxy shall have no force and
effect.
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3.
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Upon
entering into this Agreement, Keinan shall deliver to Adv. Xxxxx Xxxxxxx
of 00 Xxxxxx Xxxxxx Xx., Xxx Xxxx, Xxxxxx who is an agreed escrow agent
for the Parties (the “Escrow
Agent”):
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a.
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The
Irrevocable Proxy, duly executed and with the date of execution left in
blank.
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b.
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A
letter of resignation from Keinan’s directorship at Xfone, which shall
become effective in the event Keinan is no
longer the record or beneficial holder of at least 1,000,000 shares of the
Company’s common stock (“Keinan’s Resignation
Letter”).
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4.
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Subject
to and upon the consummation of the Transaction, the Escrow Agent shall
deliver the Irrevocable Proxy to
Xxxxxxxxx.
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5.
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Subject
to and upon the consummation of the Transaction, and upon receipt of
adequate evidence that Keinan is no longer the record or beneficial holder
of at least 1,000,000 shares of the Company’s common stock in the
aggregate, owned directly and/or indirectly, not including unexercised
options to purchase common stock, the Escrow Agent shall deliver Keinan’s
Resignation Letter to Xxxxxxxxx.
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For
purposes of this agreement, “adequate evidence” shall mean (1) a filing with the
Securities and Exchange Commission by Keinan and/or his affiliates on Form 4,
Form 5, Schedule 13D or Schedule 13G, or amendments thereto, which reports
aggregate ownership of less than 1,000,000 shares directly and indirectly; or
(2) a written statement by Keinan addressed to the Company or the Escrow Agent
to the effect that Keinan is no longer the record or beneficial holder of at
least 1,000,000 shares of the Company’s common stock.
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6.
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Subject
to and upon the consummation of the Transaction, and for as long as
Xxxxxxxxx has voting power over any shares of the Company's common stock,
in any manner whatsoever, and Keinan is a record
or beneficial holder of at least 1,000,000 shares of the Company’s common
stock, Xxxxxxxxx undertakes to vote “FOR” the election/re-election of
Keinan as a director of Xfone at any shareholder meeting at which Keinan
is standing for
election/re-election.
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7.
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In
the event the Transaction is not consummated as set forth in the Purchase
Agreement, for any reason, (i) the Escrow Agent shall deliver the
Irrevocable Proxy to Keinan; (ii) this Agreement shall terminate and shall
be of no further force and effect, and (iii) the Voting Agreement shall
remain in force and effect for the remainder of its
term.
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IN WITNESS WHEREOF, the
Parties have signed this Agreement on the day and year first above
written.
/s/ Xxxxxxx
Xxxxxx /s/ Xxx
Xxxxxxxxx
Xxxxxxx
Xxxxxx Xxx
Xxxxxxxxx
/s/ Xxx
Xxxxxxxxx
Campbeltown
Business Ltd.
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