UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported):
January 16, 2009 (January 15,
2009)
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)
5307
W. Loop 289
Lubbock,
Texas 79414
(Address
of principal executive offices)
806-771-5212
(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))
Item
1.01 Entry into a Material Definitive Agreement.
Second Amendment to
Financial Services and Business Development Consulting Agreement with Dionysos
Investments (1999) Ltd.
Background
As
previously disclosed, Xfone, Inc. (the “Company”) is a party to a certain
Financial Services and Business Development Consulting Agreement, which it
entered into on November 18, 2004 with an effective date of January 1, 2005, and
amended on February 8, 2007 (as so amended, the “Consulting Agreement”), with
Dionysos Investments (1999) Ltd. (“Dionysos”). Pursuant to the Consulting
Agreement, Dionysos assists the Company with financial activities, financial
reports, mergers & acquisitions and other business development services. The
Consulting Agreement had an initial term of two years and is automatically
renewable for successive two-year periods.
Mr. Haim
Nissenson, a consultant of the Company since its inception and father of Mr. Guy
Nissenson, the Company's President, Chief Executive Officer and Director, is the
Managing Director of Dionysos. Dionysos is owned and controlled by certain
members of the Nissenson family, other than Mr. Guy Nissenson.
Recent
Development
On
January 15, 2009, pursuant to the recommendation of the Audit Committee of the
Company and the resolution of the Board of Directors, the Company and Dionysos
entered into a Second Amendment to the Consulting Agreement (the “Second
Amendment”). The Second Amendment confirmed the automatic renewal of the
Consulting Agreement for an additional two-year period and set the same
compensation levels for fiscal 2009 and 2010 that were established for fiscal
2007 and 2008. Accordingly, Dionysos will continue to be paid £8,000
(approximately $11,727, based on the exchange rate as of January 15, 2009) per
month, plus reimbursements for expenses, and will receive a success fee of 0.5%
of the gross proceeds for any investments in the Company made by Israeli
investors during fiscal 2009 and/or 2010 that result from Dionysos’ services to
the Company.
The
parties also agreed that in or about December 2010, the Audit Committee and
Board of Directors would review and reconsider for approval the above-mentioned
compensation for any future term(s).
The
foregoing summary of the Second Amendment is qualified in its entirety by
reference to the definitive transaction document, a copy of which is attached
as Exhibit 10.131 to this Current Report on Form 8-K.
Item
5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On
January 15, 2009, the Company’s Board of Directors, pursuant to the
recommendation of the Company's Nominating Committee of same date, appointed
Arie Rosenfeld as a director, effective as of January 16, 2009, to serve until
standing for election at the next succeeding annual meeting of the Company’s
shareholders and/or until his successor is duly elected and qualified or
until his earlier resignation, removal or death. Mr. Rosenfeld was elected
to fill one of the vacancies created by an increase, from eight to ten, of the
maximum authorized number of directors on the Board of Directors, which was
approved by the Company’s Board of Directors on January 15, 2009. No
arrangements or understandings exist between Mr. Rosenfeld and any other person
pursuant to which he was appointed as a director.
Arie
Rosenfeld, 65, is currently involved with a number of high-tech companies
around the world. Since April 2008, Mr. Rosenfeld has served as Chairman of
Software Imaging Ltd., an imaging software company in Oxford, U.K. Mr.
Rosenfeld also serves as managing partner of DOR Ventures s.c.a., a venture
capital fund based in Brussels, Belgium (since May 2000), and strategic
consultant to Dainippon Screen Manufacturing Co., a company providing
manufacturing equipment to the semiconductor industry, based in Kyoto, Japan
(since June 1996). Between May 2005 and December 2008, Mr. Rosenfeld served as
Chairman of Printar Ltd., manufacturer of digital printing equipment for the PCB
industry, based in Rehovoth, Israel. From June 1997 to June 2007, Mr.
Rosenfeld served as chairman of the board of XAAR plc, a supplier of ink-jet
heads to industrial printer manufacturers in Asia, Europe and the U.S., based in
Cambridge, U.K. (LSE: XAR). From 1988 to 1995, Mr. Rosenfeld served as
President, CEO and a director of Scitex Corporation Ltd., a multi-national
company providing visual information communication products for the graphic arts
and digital printing industries, headquartered in Israel. Scitex
Corporation Ltd. was later sold to Creo Products Inc. of Vancouver, Canada.
Mr. Rosenfeld has received an MBA from INSEAD in Fontainebleau, France,
and a B.Sc. degree in electronics engineering from the Technion – Israel
Institute of Technology in Haifa, Israel.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
(a) Reamended and Restated
Bylaws of the Company
On
January 15, 2009, the Board of Directors of the Company (the “Board”) approved
and adopted the Reamended and Restated Bylaws of the Company, which are attached
hereto as Exhibit 3.11 to this Current Report on Form 8-K (the “January 15, 2009
Amended Bylaws”). The following is a summary of the principal changes
contained in the January 15, 2009 Amended Bylaws, which amended the Bylaws dated
October 25, 2007 that were in effect prior to the January 15, 2009
amendments. Some of the changes were made to include certain policies
and procedures that the Company applies that were not reflected in the Bylaws,
many of which are listed below. In addition to the changes listed
below, the amendments include non-substantive changes to clarify or update
certain provisions or to be consistent with applicable law. This
description does not purport to be complete and is qualified in its entirety by
reference to the full text of the January 15, 2009 Amended Bylaws.
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(i)
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Article
2.1 was amended to provide, among other things, that notice for annual
meetings of shareholders may also be transmitted
electronically;
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(ii)
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Article
2.2 was amended to provide, among other things, that a majority of the
Board of Directors (amended from the entire Board) is permitted to call a
special meeting, and that notice for special meetings of shareholders may
also be transmitted electronically;
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(iii)
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New
Article 2.3 was adopted to provide that, at the discretion of the Board,
shareholders may participate in meetings by remote
participation;
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(iv)
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A
newly adopted advance notice provision appears at new Article 2.4,
providing deadlines and requirements for proposals for business brought by
shareholders before annual and special meetings, and nominations by
shareholders for director candidates brought before annual meetings of
shareholders at which directors are to be elected and/or
re-elected;
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(v)
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Old
Article 2.3 (new Article 2.5) was amended to clarify that consents of
shareholders for action taken or to be taken without a meeting may be
signed in person or by proxy, and to increase the consent required for
such action from a majority of the voting power to the holders of at least
ninety percent (90%) of the voting power entitled to
vote;
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(vi)
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Old
Article 2.4 (new Article 2.6) was amended to provide for procedures in the
event a quorum is not present at a shareholder meeting and with respect to
adjourned meetings;
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(vii)
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New
Article 2.8 was added to provide that (1) each shareholder is entitled to
one vote for each share held of record as of the record date and entitling
such shareholder to vote, (2) shareholders may vote in person, including
by remote communication (if applicable), or by proxy, in accordance with a
newly adopted provision containing requirements as to valid proxies set
forth in new Article 2.9, (3) “Nominee Holders,” which is defined as
shareholders that hold stock through a nominee, that wish to vote at a
meeting in a manner other than through the nominee holding such
shareholder’s shares will be required to demonstrate such shareholder’s
stock ownership and entitlement to vote, either before or at the meeting,
and (4) actions by shareholders (other than for election or re-election of
directors) require the vote of a majority of the votes cast at a meeting
of shareholders present and entitled to vote;
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(viii)
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New
Article 2.9 was added to provide the requirements as to valid proxies for
shareholders entitled to vote for the election and/or re-election of
directors or on any other matter;
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(ix)
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Article
3.1.1 was amended to increase the maximum authorized number of directors
on the Board from eight (8) to ten (10);
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(x)
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Article
3.1.2 was amended to de-classify the Board (from the previous structure of
3 classes), and to provide that, going forward, each director elected or
re-elected at an annual meeting of shareholders will serve until the next
annual meeting (or for a one year term), except for the three directors
who were recently elected as Class A Directors at the Company’s 2008
Annual Meeting of Shareholder, who will next stand for re-election at the
2011 Annual Meeting of Shareholders;
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(xi)
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Article
3.3 was amended to reduce the number of hours required for oral, fax or
email notice of special meetings of directors, from 24 hours to 12
hours;
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(xii)
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Old
Article 3.5 (new Article 3.6) was amended to provide that the
vote of a majority of the Board participating at a
meeting at which a quorum is present is required for the act of the Board,
and that a majority of the directors present at a meeting, whether or not
a quorum is present, may adjourn the meeting;
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(xiii)
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Old Article 3.6 (new Article 3.7) was amended to
provide that directors appointed to fill vacancies will hold office until
the next succeeding annual meeting of shareholders and/or their successors
are duly elected and qualified or until their earlier resignation, removal
or death;
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(xiv)
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Old Article 3.8 (new Article 3.9) was amended to
increase the vote required for the removal of directors, with or without
cause, at any time, at a special or annual meeting of shareholder or by
written consent, from eighty percent (80%) to ninety (90%) percent of the
outstanding shares of the Company’s common
stock;
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(xv)
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New Articles 3.10 and 3.11 were added to address
the creation, governance and operation of Board
committees;
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(xvi)
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New Article 3.12 contains the authorization for
directors to participate in Board meetings by remote participation which
previously appeared in old Article 3.4, and extended such authorization to
committee members for committee meetings;
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(xvii)
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Article 4.1 was amended to provide that waiver of
notice may also be accomplished by electronic
means;
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(xviii)
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New Article 5.8 was adopted to address resignation
of officers;
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(xix)
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Old Article 6.3 relating to the Company’s fiscal
year was moved to new Article 8, General Provisions, and appears as new
Article 8.1;
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(xx)
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Article
6.2 was amended to add new Articles 2.2 (relating to special meetings of
shareholders), 2.4 (the advance notice provision) and 2.5 (shareholder
action without a meeting) to the list of Bylaws which require a vote of
not less than eighty percent (80%) of the Board of Directors in order to
be altered, amended or repealed; and
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(xxi)
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New Article 8 contains general provisions,
including the provision relating to the Company’s fiscal year, which was
moved from old Article 6.3, and new Articles 8.2 and 8.3, relating to the
use of electronic mail to satisfy requirements for written consents,
requests, approvals, notices and demands by shareholders, proxy holder or
directors, and certificated and uncertificated forms of capital stock of
the Company,
respectively.
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Under the
new advance notice provision set forth in new Article 2.4, any stockholder
proposal or director nomination submitted in connection with the Company’s 2009
Annual Meeting of Stockholders (other than proposals brought under Rule 14a-8
(or any successor provision) under the Securities Exchange Act of 1934, as
amended, which proposals are not governed by this Bylaw provision) must be
received
at the
Company’s
principal
executive offices
no less than 60 and no more than 90 calendar days prior
to the first anniversary of the date of the 2008 Annual Meeting of Shareholders,
or no earlier than September 17, 2009 and no later than October 16,
2009.
Item
8.01 Other
Events
Amendment of Nominating
Committee Charter
On
January 15, 2009, the Board of Directors of the Company approved amendments to
the charter of the Nominating Committee of the Board (the “Committee”) to
replace references to the “American Stock Exchange” with “NYSE Alternext US
LLC,” the name by which the stock exchange is currently known, to revise
applicable provisions regarding shareholder recommendations and nominations of
director candidates to be consistent with the January 15, 2009 Amended Bylaws
(as described above) and with the Company’s Policy Regarding Shareholder
Recommendations and Nominations for Director Candidates, which was adopted by
the Board on the same date, and to make certain technical, clarifying and
non-substantive changes. A copy of the Committee’s charter as amended is
attached hereto as Exhibit 99.1, and will be available on the Company’s website,
at
www.xfone.com
.
Item 9.01
Financial Statements and Exhibits
(a)
None.
(b)
None.
(c)
None.
(d)
Exhibits
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.
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Xfone,
Inc.
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Date: January
16, 2009
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By:
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/s/ Guy
Nissenson
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Guy
Nissenson
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President,
Chief Executive Officer and Director
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