AGREEMENT AND PLAN OF MERGER By and Among XFONE, INC. AND XFONE USA, INC. Dated August 26, 2005

By and Among
I-55 TELECOMMUNICATIONS, L.L.C.,
XFONE, INC. AND XFONE USA, INC.
Dated August 26, 2005


ARTICLE I
2
1.01
2
1.02
2
1.03
2
1.04
4
1.05
4
1.06
5
1.07
5
1.08
5
1.09
5
1.10
5
1.11
5
ARTICLE II
6
2.01
6
2.02
6
2.03
6
2.04
7
2.05
7
2.06
7
2.07
8
2.08
8
2.09
8
2.10
10
2.11
11
2.12
11
2.13
12
2.14
14
2.15
14
2.16
15
2.17
15
2.18
15
2.19
15
2.20
15
2.21
16
2.22
16
2.23
20
2.24
20
2.25
20
2.26
20
2.27
21
2.28
21
2.29
22
2.30
22
2.31
22
ARTICLE III
23
3.01
23
3.02
23
3.03
24
3.04
24
3.05
24
3.06
24
ARTICLE IV
25
4.01
25
4.02
25
4.03
25
4.04
26
4.05
26
4.06
27
4.07
27
4.08
27
4.09
28
4.10
28
4.11
28
4.12
28
4.13
29
4.14
29
ARTICLE V
30
5.01
30
5.02
31
5.03
33
ARTICLE VI
35
6.01
35
6.02
36
6.03
38
6.04
39
6.05
39
ARTICLE VII
40
7.01
40
7.02
40
7.03
40
7.04
41
7.05
41
ARTICLE VIII
42
8.01
42
8.02
43
8.03
43
8.04
44
8.05
44
8.06
44
8.07
44
8.08
44
8.09
44
8.10
44
8.11
45



Exhibits
 
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E

Schedules
Schedule 2.03
Schedule 2.07
Schedule 2.08
Schedule 2.09
Schedule 2.10
Schedule 2.12(b)
Schedule 2.13
Schedule 2.15
Schedule 2.16
Schedule 2.22
Schedule 2.25
Schedule 2.26
Schedule 2.30
Schedule 5.02(b)
  

 
AGREEMENT AND PLAN OF MERGER
 
This AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of August 26, 2005 by and among I-55 TELECOMMUNICATIONS, L.L.C., a limited liability company organized under the laws of the State of Louisiana (“I-55” or the “Company”), XFONE, INC., a corporation organized under the laws of the State of Nevada ("Parent"), XFone USA, Inc. (“Subsidiary”), a corporation organized under the laws of the State of Mississippi, a wholly owned subsidiary of Parent , and Ran▇▇▇▇ ▇▇▇▇ ▇▇m▇▇ ▇▇▇▇▇▇ (▇he "Principal").
 
BACKGROUND
 
A. The Board of Directors of each of Parent, Subsidiary, and the Company believe it is in the best interests of their respective companies and their respective shareholders that Parent acquire the Company through the statutory merger of the Company with and into the Subsidiary (the "Merger") and, in furtherance thereof, have approved the Merger.
 
B. Pursuant to the Merger, among other things, all of the issued and outstanding capital stock of the Company shall be acquired and converted into the right to receive the consideration upon the terms and conditions set forth herein.
 
C. The Company and the Principal, on the one hand, and Parent and Subsidiary, on the other hand, desire to make certain representations, warranties, covenants and other agreements in connection with the Merger.
 
D. Concurrently with the execution and delivery of this Agreement, as material inducements to Parent and Subsidiary to enter into this Agreement, Parent, the Subsidiary, the Escrow Agent (as defined herein) and the Principal are entering into an Escrow Agreement, in the form attached as Exhibit B (the "Escrow Agreement").
 
NOW, THEREFORE, in consideration of the covenants, promises and representations set forth in this Agreement, the parties agree as follows:
 

 
THE MERGER
 
1.01 The Merger; Effective Time. The Company shall be merged with and into Subsidiary, and Subsidiary shall be the surviving corporation (sometimes referred to herein as the "Surviving Corporation"). The Merger shall be consummated effective at the time Articles of Merger attached hereto as Exhibit A, are completed, executed and filed with the later of the Mississippi and Louisiana Secretaries of State. The date and time of such consummation are referred to as the "Closing Date" and the "Effective Time," respectively. The "Management Date" shall mean a date prior to the Closing Date that the Company and the Subsidiary enter into a Management Operating Agreement; provided, however, if the Company and Subsidiary fail to enter into a Management Operating Agreement, the Management Date shall be the Closing Date.
 
1.02 Effect of the Merger. At the Effective Time, (i) the separate existence of the Company shall cease and the Company shall be merged with and into Subsidiary, (ii) Subsidiary shall continue to possess all of the rights, privileges and franchises possessed by it and shall, at the Effective Time, become vested with and possess all property, rights, privileges, powers and franchises possessed by and all the property, real or personal, causes of action and every other asset of the Company, (iii) Subsidiary shall be responsible for all of the liabilities and obligations of the Company in the same manner as if Subsidiary had itself incurred such liabilities or obligations, and the Merger shall not affect or impair the rights of the creditors or of any persons dealing with the Company, (iv) the Articles of Incorporation and the Bylaws of Subsidiary shall become the Articles of Incorporation and the Bylaws of the Company, (v) the existing officers and directors of Subsidiary shall remain in such offices, and (vi) the Merger shall have all the effects provided by applicable Mississippi law.
 
1.03 Consideration; Conversion of Shares.
 
(a) Definitions. For all purposes of this Agreement, the following terms shall have the following respective meanings:
 
(i) "Aggregate Merger Consideration" shall mean the: (1) the Parent Stock Consideration, and (2) the Parent Warrant Consideration.
 
(1) "Parent Stock Consideration" shall mean a number of shares of the common stock of the Parent Common Stock with an agreed market value of $333,333.00 determined using the weighted average price as reported on the website of the American Stock Exchange of the Parent Common Stock for the ten (10) trading days preceding the trading day immediately prior to the Management Date (which weighted average price shall in no event be less than $2.70 per share or greater than $3.70 per share).
 
(2) "Parent Warrant Consideration" shall mean a number of Parent Stock Warrants with a value of $166,667.00 with the value calculated as of the Management Date assuming 90% volatility of the underlying Parent Common Stock pursuant to the Black Scholes option - pricing model.
 
(ii) "Company Common Stock" shall mean shares of the Company's common stock. The terms “stock” and “common stock” shall be construed to include any ownership interest in the Company.
 
(iii) "Company Stockholders" or "Company Shareholders" shall mean the holders of the Total Company Common Stock at the Effective Time. “Stockholders” and “shareholders” includes any owners of any interest in the Company.
 
(iv) "Escrow Agent" shall mean Trustmark National Bank or such other person or entity mutually agreed to by the parties to serve as an escrow agent under the Escrow Agreement.
 
(v) "GAAP" shall mean U.S. generally accepted accounting principles.
 
(vi) "Knowledge" shall mean (i) with respect to the Company, the actual knowledge of any of the Company's officers or directors or either of the Principals and the knowledge that such persons would have obtained of the matter represented after reasonable inquiry thereof under the circumstances; and (ii) with respect to the Parent and Subsidiary, the actual knowledge of the Parent's and Subsidiary’s Chairman, President or any Executive Vice President and the knowledge that such person would have obtained of the matter represented after reasonable inquiry thereof under the circumstances.
 
(vii) "Material Adverse Effect" shall mean any change, event or effect that is materially adverse to the business, assets, financial condition, prospects or results of operations of the Company and its Subsidiaries, taken as a whole.
 
(viii) "Parent Common Stock" shall mean shares of the common stock of Parent.
 
(ix) "Parent Stock Warrants" shall mean warrants convertible on a one to one basis into Parent Common Stock with a term of five (5) years, a strike price that is 10% above the closing price of the Parent Common Stock on the Closing Date with the Parent Common Stock into which the warrant is convertible is restricted stock.
 
(x) "SEC" shall mean the U.S. Securities and Exchange Commission.
 
(xi) "Total Company Common Stock" shall be the aggregate number of all shares of Company Common Stock issued and outstanding immediately prior to the Effective Time.
 
        (b) The Aggregate Merger Consideration shall be allocated among the Company Stockholders as of the Effective Date as follows:
 
(c) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares as defined in Section 1.04) will be canceled and extinguished and be converted automatically into the right to receive upon surrender of certificate(s) representing Company Common Stock (i) an amount of the Parent Stock Consideration equal to the product of one times the Parent Stock Consideration divided by the Total Company Common Stock; and (ii) an amount of the Parent Warrant Consideration equal to the product of one times the Parent Warrant Consideration divided by the Total Company Common Stock.
1.04 No Dissenters Rights. Since the sole shareholder by execution of this Agreement has approved this Agreement and the Merger and transactions contemplated hereby, the Company and Principal represent and warrant that there are no dissenter’s rights available under the Limited Liability Company Law of Louisiana or otherwise.
 
1.05 Surrender of Certificates.
 
(a) Exchange Agent. Transfer Online, Inc. shall serve as the exchange agent (the "Exchange Agent") for the Merger.
 
(b) Parent to Provide Parent Common Stock and Parent Stock Warrants. Upon the terms and subject to the conditions of Section 1.03, promptly after the Effective Time, in exchange for outstanding Company Common Stock, Parent shall make available to the Exchange Agent for exchange in accordance with this Article I, the Aggregate Consideration issuable pursuant to Section 1.03, less the Parent Common Stock and Parent Stock Warrants being escrowed in accordance with Section 6.02(b) hereof (the "Escrow Shares"), which Parent shall deposit into the Escrow Fund as defined in Section 6.02(b) hereof.
 

(c) Exchange Procedures. As promptly as practicable after the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of record of a certificate(s) which, immediately prior to the Effective Time, represented outstanding Company Common Stock(the "Certificates"), whose Company Common Stock was converted into the right to receive shares of Parent Common Stock and Parent Stock Warrants pursuant to Section 1.03: (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify); and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificate(s) representing shares of Parent Common Stock and for the Parent Stock Warrants. Upon surrender of Certificates for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, the holders of such Certificates shall be entitled to receive in exchange therefor certificate(s) representing the number of whole shares of Parent Common Stock and Parent Stock Warrants, and the Certificates so surrendered shall forthwith be canceled. Until so surrendered, outstanding Certificates will be deemed from and after the Effective Time, for all corporate purposes other than the payment of dividends, to evidence the ownership of the number of full shares of Parent Common Stock and Parent Stock Warrants into which such Company Common Stock shall have been so converted.
 
(d) Distributions With Respect to Unexchanged Shares. No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time will be paid to the holder of any unsurrendered Certificate with respect to the Parent Common Stock represented thereby until the holder of record of such Certificates shall surrender such Certificates. Subject to applicable law, as promptly as practicable following surrender of any such Certificates, the Exchange Agent shall deliver to the record holder thereof, without interest, (i) certificate(s) representing whole shares of Parent Common Stock and Parent Stock Warrants issued in exchange therefore, and (ii) the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender payable with respect to such whole shares of Parent Common Stock.
 
(e) No Liability. Notwithstanding anything to the contrary in this Section 1.05, neither the Exchange Agent, the Surviving Corporation nor any party hereto shall be liable to a holder of shares of Company Common Stock or Company Preferred Stock for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
 
1.06 Value of Parent Common Stock. For purposes of the indemnification obligations described in Article VI hereof, the parties hereto agree that the Parent Common Stock shall be deemed to have a value determined using the weighted average price as reported on the website of the American Stock Exchange for the ten (10) trading days preceding the date on which a claim for indemnification is made, and Parent Stock Warrants issued in the Merger shall be deemed to have a value per share equal to the value per share determined in accordance with Section 1.03.
 
1.07 Treatment of the Company Options and Warrants. All outstanding options, warrants and other rights to purchase Company Common Stock or any other equity interest in the Company as set forth in Section 2.03 that remain unexercised as of the Effective Time will be terminated, and the rights granted thereunder will be forfeited. Prior to the Management Date, the Company shall provide all necessary notifications, and obtain all necessary consents, releases or cancellation agreements from the holders of such options, warrants and other rights as Parent may reasonably require.
 
1.08 No Further Ownership Rights in the Company Capital Stock. The shares of Parent Common Stock and Parent Stock Warrants paid in respect of the surrender for exchange of Company Common Stock in accordance with the terms hereof (including any cash paid with respect to fractional shares of Parent Common Stock or Parent Stock Warrants) shall be deemed to be in full satisfaction of all rights pertaining to such Company Common Stock, and there shall be no further registration of transfers on the records of the Surviving Corporation of capital stock that was outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged as provided in this Article I.
 
1.09 Lost, Stolen or Destroyed Certificates. In the event any certificates evidencing shares of Company Common Stock shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed certificates, upon the making of an affidavit of that fact by the holder thereof, such shares of Parent Common Stock, Parent Stock Warrants or such cash consideration as may be required pursuant to Section 1.03 hereof; provided, however, that Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificates to deliver a bond in such amount as it may reasonably direct against any claim that may be made against Parent or the Exchange Agent with respect to the certificates alleged to have been lost, stolen or destroyed.
 
1.10 Taking of Necessary Action; Further Action. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company, then the officers, directors and employees of the Company, Parent and Subsidiary are fully authorized in the name of their respective companies or otherwise to take, and will take, all such lawful and necessary action.
 
1.11 Tax Consequences. It is intended that the Merger shall constitute a reorganization within the meaning of Section 368(a)(1)(A), by reason of Section 368(a)(2)(D) of the Internal Revenue Code of 1986, as amended (the "Code"), and that this Agreement shall constitute a "plan of reorganization" within the meaning of Section 368 of the Code.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE PRINCIPALS
 
The Company, and each of the Principals, hereby represent and warrant to Parent and Subsidiary that on the date hereof and as of the Effective Time as though made on the Effective Date as follows:
 
2.01 Organization. The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Louisiana and the Company has filed its only tax return in a manner consistent with taxation as a corporation. The Company has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly licensed or qualified to do business in each jurisdiction in which its ownership or leasing of its properties or the nature of the business conducted by the Company makes such licensing or qualification necessary. The copies of the Articles of Organization of the Company and the operating agreement of the Company, certified by its Secretary as of the date of this Agreement, which are being delivered to Parent and Subsidiary herewith, are complete and correct copies of such documents in effect as of the date of this Agreement. The minute books of the Company contain true and complete records of all meetings and other corporate actions of its shareholders/members (herein “Shareholders” or “Members”) and their Boards of Managers (herein “Board of Directors”) (including all committees of their Boards of Directors).
 
2.02 Subsidiaries. There is no other corporation, limited liability company, partnership, association, joint venture or other business entity that the Company owns or controls, directly or indirectly.
 
2.03 Capital Structure.
 
(a) The authorized capital stock of the Company consists of (i) 100 shares of Company Common Stock, 100 shares of which are issued and outstanding to the Principal. Except as set forth in this Section 2.03 or on Schedule 2.03(a) hereto, there are no shares of capital stock of the Company authorized, issued or outstanding. Except for Company Common Stock set forth in this Section 2.03 or on Schedule 2.03(a) hereto, there are no classes or series of ownership interests of the Company of any kind authorized, outstanding or issuable. All outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid and non-assessable, and are not subject to preemptive rights created by statute, the Articles of Organization or Operating Agreement of the Company, or any agreement to which the Company is a party or by which it is bound. All shares of Company Common Stock have been issued in compliance with all applicable federal and state securities laws. The designations, powers, preferences, rights, qualifications, limitations and restrictions in respect of Company Common Stock are as set forth in Schedule 2.03(a) hereto. There are no declared or accrued but unpaid dividends with respect to any shares of the Company capital stock and none of the Company capital stock is held in treasury.
 
(b) As of the date hereof, there are no options, warrants or similar rights outstanding or authorized with respect to the capital stock or equity of the Company. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company. There are no voting trusts, proxies, or other agreements or understandings with respect to Company Common Stock. The Principal has good, valid and marketable title to Company Common Stock free and clear of any claim, lien, pledge, charge, security interest options, charges, assessments or other encumbrance of any nature whatsoever.
 
(c) The requisite vote required to approve the Merger under Louisiana law, the Company's Articles of Organization, Operating Agreement and any other agreement to which the Company or any Shareholder of the Company is majority of the Company Common Stock voting as a class.
 
2.04 Authority. The Company and the Principal have all requisite power and authority to enter into this Agreement and any Related Agreement (as defined below) to which they are party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, any Related Agreement to which the Company is party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary limited liability company action on the part of the Company, including approval of the sole Company Shareholder. No further action is required on the part of the Principal to authorize the Agreement, any Related Agreement to which he is a party and the transactions contemplated hereby and thereby. This Agreement, any Related Agreement to which the Company is a party and the merger and the transactions contemplated thereby have been unanimously approved by the board of directors and the Principal, as sole Shareholder of the Company. This Agreement and any Related Agreement to which the Company and/or any of the Principals is a party has been duly executed and delivered by the Company and/or the Principal, as the case may be, and constitute the valid and binding obligations of the Company and the Principal, enforceable against each such party in accordance with their respective terms, except as such enforceability may be subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. For the purposes of this Agreement, the term "Related Agreements" shall mean the Escrow Agreement, the Articles of Merger and Management Agreement, and any other agreements to which the Company and/or the Principal is a party that is entered into in order to consummate the transactions contemplated hereby or thereby.
 
2.05 No Conflict. The execution and delivery by the Company and the Principal of this Agreement and any Related Agreement to which the Company and/or the Principal is a party, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in any violation of or default under (with or without notice or lapse of time, or both) or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any benefit under (any such event, a "Conflict"): (i) any provision of the Articles of Organization or Operating Agreement of the Company, each as amended to date; (ii) any contract to which the Company is a party, or to which any of the Principals, is subject; or (iii) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any respective properties or assets, or applicable to any of the Principals.
 
2.06 Consents. No consent, waiver, approval, order or authorization of, or registration, declaration or filing with any court, administrative agency or commission or other federal, state, county, local or other foreign governmental authority, instrumentality, agency, commission, military division or department, inspectorate, minister, ministry or public or statutory person (whether autonomous or not) thereof (or of any political subdivision thereof) (each, a "Governmental Entity"), is required by or with respect to the Company, or the Principal in connection with the execution and delivery of this Agreement, any of the Related Agreements to which the Company, or the Principal is a party, or the consummation of the transactions contemplated hereby or thereby, except for: (i) the approval of the Public Service Commission of the States of Louisiana and Mississippi; (ii) the filing of the Articles/Certificate of Merger with the Secretary of State of the State of Mississippi and Louisiana; (iii) the consents as set forth in Section 5.02(b); and (iv) such other consents, filings, approvals, registrations or declarations, the failure of which to make or obtain is not reasonably likely, individually, or in the aggregate, to have a Material Adverse Effect.
 
        2.07 The Company Financial Statements. Attached as Schedule 2.07 are the (i) unaudited balance sheet as of December 31, 2002, 2003 and 2004, and the Profit and Loss Statement for the Company for the years ended December 31, 2002, 2003 and 2004 and (ii) the unaudited balance sheet as of June 30, 2005 and the Profit and Loss Statement for the Company for the three months ending June 30, 2005 (collectively, the "Financials"). The Financials are true, correct and accurate and have been based upon the information contained in the books and records of the Company and have been prepared in accordance with GAAP except that the June 30, 2005 Financials do not have notes thereto and may be subject to normal and recurring year end adjustments consistently applied throughout the periods covered thereby. The Financials present fairly the financial condition, operating results and cash flows of the Company as of the dates and during the periods indicated therein. The Company's unaudited balance sheet as of June 30, 2005 is referred to hereinafter as the "Current Balance Sheet." The Company maintains and will continue, prior to the Effective Time, to maintain a standard system of accounting established and administered in accordance with GAAP.
 
 
2.08 No Undisclosed Liabilities. Except as and to the extent reflected or reserved against in the Financials or as disclosed on Schedule 2.08, which shall include all the Company's accounts payable and other accrued expenses as of the date of this Agreement, and subject to the thresholds set forth in Section 2.13 of this Agreement (except that the thresholds of Section 2.13 shall not apply if the cumulative undisclosed liabilities based on such threshold exceed $25,000), the Company has no liabilities, claims or obligations (whether accrued, absolute, contingent, unliquidated or otherwise, whether or not known to the Company or Principals or any directors, officers or employees of the Company, whether due to become payable and regardless of when or by whom asserted) or any unrealized or anticipated losses from any unrealized or anticipated losses of a contractual nature.
 
2.09 No Changes. Except as set forth on Schedule 2.09, since the Current Balance Sheet Date, there has not been, occurred or arisen any of the following with respect to the Company:
 
(a) material transaction by the Company except in the ordinary course of business consistent with past practices;
 
(b) amendments or changes to the organizational documents of the Company;
 
(c) capital expenditure or capital expenditure commitment exceeding $5,000 individually or $10,000 in the aggregate;
 
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payments, discharges or satisfactions made or given in the ordinary course of business consistent with past practices;
 
(e) destruction of, damage to or loss of any material assets or material business or loss of any material customer (whether or not covered by insurance);
 
(f) claim of wrongful discharge or other unlawful labor practice or action;
 
(g) material change in accounting methods or practices (including any change in depreciation or amortization policies or rates by the Company) other than as required by GAAP;
(h) change in any election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
 
(i) revaluation by the Company of any of their respective assets;
 
(j) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any share of capital stock, or any split, combination or reclassification in respect of any share of capital stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for any share of capital stock, or any direct or indirect repurchase or redemption of any share of capital stock (or options or other rights convertible into, exercisable or exchangeable therefor);
 
(k) increase in the salary or other compensation (cash, equity or otherwise) payable by the Company to any officers, directors, employees or advisors, or the declaration, or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation (cash, equity or otherwise) to any such person;
 
(l) sale, lease or other disposition of any of the material assets or material properties or any creation of any security interest in such material assets or material properties;
 
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing of any indebtedness (in each case, except in the ordinary course of business and consistent with past practice, including, without limitation, travel and related expenses advanced to employees), issuance or sale of any debt securities or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
 
(n) waiver or release of any material or valuable right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
 
(o) the commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation against the Company or its affairs, or any reasonable basis for any of the foregoing;
 
(p) notice to the Company, or their respective directors, officers or managers or advisors of any claim of ownership by any person other than the Company of the intellectual property owned by or developed or created by the Company or of infringement by the Company of any other person's intellectual property;
 
(q) issuance or sale, or contract to issue or sell, by the Company of any capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
 
(r) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(s) hiring or termination of any employee of the Company;
 
(t) event or condition of any character that has had or is reasonably likely to have a Material Adverse Effect; or
 
(u) agreement by the Company, or any officer, manager or employee thereof on behalf of the Company to do any of the things described in the preceding clauses (a) through (t) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
 
2.10 Tax Matters.
 
(a) Definition of Taxes. For the purposes of this Agreement, the term "Tax" or, collectively, "Taxes" shall mean: (i) any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities, including taxes based upon or measured by gross receipts, income, profits, capital gains, capital stock, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, stamp, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts (whether payable directly or by withholding, and whether or not requiring the filing of a Return (defined below)); (ii) any liability for the payment of any amounts of the type described in clause (i) above as a result of being a member of an affiliated, consolidated, combined or unitary group for any period; and (iii) any liability for the payment of any amounts of the type described in clauses (i) or (ii) above as a result of any express or implied obligation to indemnify any other person or as a result of any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity.
 
(b) Taxes. All Taxes which are due and payable by the Company and any interest or penalties thereon have been paid in full or accrued on the balance sheets included in the Financials. All federal, state and other tax returns of the Company required by law to be filed have been timely filed, and Company has paid or accrued on the balance sheets included in the Financials (including taxes on properties, income, franchises, licenses, sales and payrolls) all taxes which have become due pursuant to such returns or pursuant to any assessment. All such tax returns have been prepared in compliance with all applicable laws and regulations and are true and accurate in all material respects. The amounts set up as provisions for Taxes (including provision for deferred income taxes) on the Financials are sufficient for the payment of all unpaid federal, state, county and local taxes accrued for or applicable to all periods (or portions thereof) ending on or before the Effective Date. There are no tax liens on any of the property of the Company except those with respect to taxes not yet due and payable. There are no pending tax examinations nor has the Company received a revenue agent's report asserting a tax deficiency. The Company does not expect any taxing authority to claim or assess any amount of additional taxes against it. No claim has ever been made by a taxing authority in a jurisdiction where the Company does not file tax returns that the Company is or may be subject to taxes assessed by such jurisdiction.
 
Copies of Company’s only federal, state and local income tax returns are included as Schedule 2.10(b). No waivers of any statute of limitations relating to the payment of taxes have been given by the Company and no waivers therefor have been requested by the Internal Revenue Service from the Company. No extensions have been obtained to file any tax return which has not heretofore been filed. The Company has withheld from each payment made to employees of the Company the amount of all taxes (including, but not limited to, federal, state and local income taxes, Federal Insurance Contribution Act taxes and Unemployment Tax Act taxes) required to be withheld therefrom and all amounts customarily withheld therefrom, and have set aside all other employee contributions or payments customarily set aside with respect to such wages and have paid or will pay the same to, or have deposited or will deposit such payment with, the proper tax receiving officers or other appropriate authorities. All Taxes and other amounts required to be collected and paid to a third party as required by law from customers' payments have been timely withheld and paid by the Company. The Company has filed its only tax return in a manner consistent with taxation as a corporation.
 
2.11 Restrictions on Business Activities. There is no agreement (noncompete or otherwise), commitment, judgment, injunction, order or decree to which the Company is a party or otherwise binding upon the Company, which has or may reasonably be expected to have the effect of prohibiting or impairing in any material respect any business practice, any acquisition of property, the conduct of business as currently conducted or otherwise materially limiting the freedom of the Company to engage in any line of business or to compete with any person.
 
2.12 Title of Properties; Absence of Liens and Encumbrances; Condition of Equipment.
 
(a) The Company has good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of its properties and assets, real, personal and mixed, used or held for use in its business, free and clear of any Liens, except: (i) as reflected in the Financials; (ii) Liens for Taxes not yet due and payable; and (iii) such imperfections of title and encumbrances, if any, which do not detract materially from the value of, or interfere materially with the present use of, the property subject thereto or affected thereby.
 
(b) Schedule 2.12(b) contains an accurate and complete list and description of all real property owned by the Company or in which the Company has a leasehold or other interest or which is used by the Company in connection with the operation of its business, together with a description of each lease, sublease, license, or any other instrument under which the Company claims or holds such leasehold or other interest or right to the use thereof or pursuant to which the Company has assigned, sublet or granted any rights therein, identifying the parties thereto, the rental or other payment terms, expiration date and cancellation and renewal terms thereof, and all machinery, tools, equipment, motor vehicles, rolling stock and other tangible personal property (other than inventory and supplies), owned, leased or used by the Company except for items having a value of less than $2,000 which do not, in the aggregate, have a total value of more than $10,000, setting forth with respect to all such listed property a summary description of all leases, liens, claims, encumbrances, charges, restrictions, covenants and conditions relating thereto, identifying the parties thereto, the rental or other payment terms, expiration date and cancellation and renewal terms thereof.
 
(c) The Company has not granted to any third party any right or license to use the Company's customer lists, customer contact information, customer correspondence or customer licensing and purchasing histories relating to its current and former customers.
 
2.13 Material or Significant Agreements, Contracts and Commitments.
 
(a) Except as set forth on Schedule 2.13(a), the Company is not presently a party to or bound by:
 
(i) any employment, consulting or sales agreement with any employee, consultant or salesperson of the Company that is not otherwise terminable without penalty upon no more than 30 days notice or involves payments of more than $10,000 per annum;
 
(ii) any agreement or plan relating to employee benefits or compensation involving payments of more than $10,000 per annum, including without limitation any option plan or purchase plan with respect to Equity Interests of the Company , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
 
(iii) any material fidelity or surety bond or completion bond;
 
(iv) any lease of personal property having an annual rental rate in excess of $2,000 individually or $20,000 in the aggregate;
 
(v) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $5,000 individually or $20,000 in the aggregate;
 
(vi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business that involves future payments of more than $10,000;
 
(vii) any payables, mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or evidencing any debt or any payable, debt or agreement which is secured by any assets of the Company and has a balance of more than $5,000.00;
 
(viii) any purchase order or contract for the purchase of materials or services involving in excess of $2,000 individually or $20,000 in the aggregate;
 
(ix) any material construction contracts;
(x) any dealer, distribution, joint marketing or development agreement or agreements relating to territorial arrangements, sales representation, operating or consulting agreements that is not otherwise terminable without penalty upon no more than 30 days notice or involves payments of more than $10,000 per annum;
 
(xi) any remarketer, reseller or other agreement for use or distribution of the Company's products, technology or services that may not be cancelled without penalty upon no more than 30 days notice;
 
(xii) any supplier or third party provider agreements that involves future payments in excess of $10,000 per annum and is not cancelable without penalty within 30 calendar days;
 
(xiii) any joint venture, partnership or other management agreements that involves future payments of more than $10,000;
 
(xiv) any advertising, marketing, telemarketing or promotional agreements that involves future payments of more than $5,000;
 
(xv) any material tax sharing agreement with any other party;
 
(xvi) any non-compete or other agreements restricting the business in any way;
 
(xvii) any independent agent or independent contractor agreements that is not cancelable without penalty within 30 calendar days;
 
(xviii) any agreements for the discount of the services or products offered by the Company that involve discounts of more than $5,000 per annum;
 
(xix) any material agreements pursuant to which the Company is obligated to indemnify any party;
 
(xx) any agreements that involves future payments of more than $5,000 or which is not otherwise cancelable without penalty within 30 calendar days with any current or former officer, director, employee, consultant or equity holder or any partnership, corporation, joint venture or other entity in which any such person has an interest;
 
(xxi) any irrevocable right of use or similar agreements that is not cancelable without penalty within 30 calendar days;
 
(xxii) any agreement providing for the purchase of telecommunications minutes, services or traffic that involves future payments of more than $5,000 or which is not otherwise cancelable without penalty within 30 calendar days; or
 
(xxiii) any other agreement, contract or commitment that involves $2,000 individually or $20,000 in the aggregate or more and is not cancelable without penalty within thirty (30) calendar days.
 
The undisclosed liabilities based on the thresholds as provided in this Section 2.13(a) do not exceed in the aggregate $25,000.
 
(b) The Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, lease, license or commitment to which it is a party or by which it is bound, including those included on Schedule 2.13(a) (collectively, the "Contracts"), nor does the Company have knowledge of any event that would constitute such a material breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any material default thereunder, nor, to the Knowledge of the Company, is any party obligated to the Company pursuant thereto subject to any material default thereunder.
 
(c) The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger or for such Contracts to remain in effect without modification, limitation or alteration after the Effective Date. Following the Effective Date, the Company will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than amounts or consideration which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.
 
2.14 Interested Party Transactions. No officer, director, employee, shareholder, manager or member of the Company (nor any ancestor, sibling, descendant or spouse of any such person, or trust, partnership or corporation in which any such person has or has had an interest) has or has had, directly or indirectly: (i) an interest in any entity which furnished or sold, or furnishes or sells, services, products or technology that the Company furnishes or sells; (ii) any interest in any entity that purchases from or sells or furnishes to the Company, any goods or services; or (iii) a beneficial interest in any Contract to which the Company is a party; provided, however, that ownership of no more than 1% of the outstanding voting stock of a publicly traded corporation shall not be deemed to be an "interest in any entity" for purposes of this Section 2.14.
 
2.15 Governmental Authorization.
 
(a) Each consent, license, permit, grant, certificate, approval or other authorization (i) pursuant to which the Company currently operates or holds any interest in any of its properties, or (ii) which is required for the operation of its business as currently conducted or the holding of any such interest has been issued or granted and is listed on Schedule 2.15 (collectively, the "the Company Authorizations"). The Company is operating in compliance with all Company Authorizations. Each Company Authorization has been lawfully and validly issued and no proceeding or investigation is currently pending or threatened, and the Company has received no notice of any investigation, revocation, cancellation or modification with respect to any Company Authorization and knows of no basis therefor. The Company has timely filed all reports, data and other information required to be filed with any governmental entity or as required to maintain the Company Authorizations. The Company Authorizations are in full force and effect, and, shall remain in full force and effect without modification after the Effective Time.
 
2.16 Litigation. Except as set forth on Schedule 2.16, there is no action, suit, claim or proceeding of any nature pending or threatened against the Company or the Principal or their respective properties or any person or entity whose liability the Company or the Principal may have retained or assumed, either contractually or by operation of law, nor, to the Knowledge of the Company or Principal, is there any reasonable basis therefor. There is no investigation or other proceeding pending or threatened against the Company or the Principal, any of their respective properties or any person or entity whose liability the Company or the Principal may have retained or assumed, either contractually or by operation of law, by or before any Governmental Entity, nor, to the Knowledge of the Company or Principal, is there any reasonable basis therefor. Except as set forth on Schedule 2.16, no Governmental Entity has at any time challenged or questioned the legal right of the Company to conduct its operations as presently or previously conducted.
 
2.17 Accounts Receivable. All receivables of the Company (including accounts receivable, loans receivable and advances) which are reflected in the Balance Sheet, and all such receivables which will have arisen since the date thereof, shall have arisen only from bona fide transactions in the ordinary course of the business of the Company and shall be (or have been) fully collected when due, or in the case of each account receivable within 90 days after it arose (or, in the case of the BellSouth receivable reflected on Schedule 2.09(g), 180 days from the Management Date), without resort to litigation and without offset or counterclaim, in the aggregate face amounts thereof except to the extent of the normal allowance for doubtful accounts with respect to accounts receivable computed as a percentage of sales consistent with the Company's prior practices as reflected on the Financials.
 
2.18 Assets Necessary to Business. The Company presently has and at Closing will have title to all property and assets, real, personal and mixed, tangible and intangible, and all leases, licenses and other agreements, necessary to permit Subsidiary to carry on the business of the Company, as currently conducted.
 
2.19 Minute Books. The minutes of the Company made available to counsel for Parent are the only minutes of the Company and contain substantially accurate summaries of all material meetings of the board of directors (or committees thereof), the board of managers (or committees thereof), the shareholders (or committees thereof), the members (or committees thereof) of the Company , as applicable, and each action by written consent since the inception of each such entity.
 
2.20 Environmental Matters.
 
(a) Hazardous Material. The Company has not: (i) operated any underground storage tanks at any property that the Company has at any time owned, operated, occupied or leased; or (ii) illegally released any amount of any substance that has been designated by any Governmental Entity or by applicable federal, state or local law to be radioactive, toxic, hazardous or otherwise a danger to health or the environment, including without limitation PCBs, asbestos, petroleum, and urea-formaldehyde and all substances listed as hazardous substances pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, or defined as a hazardous waste pursuant to the United States Resource Conservation and Recovery Act of 1976, as amended, and the regulations promulgated pursuant to said laws (a "Hazardous Material"). To the Knowledge of the Company, no Hazardous Materials are present in, on or under any property, including the land and the improvements, ground water and surface water thereof, that the Company or any Subsidiary has at any time owned, operated, occupied or leased.
(b) Hazardous Materials Activities. The Company has not transported, stored, used, manufactured, disposed of, released or exposed its employees or others to Hazardous Materials in violation of any law in effect on or before the Effective Time, nor has the Company or any Subsidiary disposed of, transported, sold, or manufactured any product containing a Hazardous Material (any or all of the foregoing being collectively referred to herein as "Hazardous Materials Activities") in violation of any rule, regulation, treaty or statute promulgated by any Governmental Entity in effect prior to or as of the date hereof to prohibit, regulate or control Hazardous Materials or any Hazardous Material Activity.
 
(c) Permits. The Company currently holds all environmental approvals, permits, licenses, clearances and consents (the "Environmental Permits") necessary for the conduct of Hazardous Material Activities by them, respectively, and other businesses of the Company as such activities and businesses are currently being conducted.
 
(d) Environmental Liabilities. No action, proceeding, revocation proceeding, amendment procedure, writ, injunction or claim is pending or, to the Knowledge of the Company, threatened concerning any Environmental Permit, Hazardous Material or any Hazardous Materials Activity of the Company or any Subsidiary. The Company has no Knowledge of any fact or circumstance that is reasonably likely to involve the Company in any environmental litigation or impose upon the Company any environmental liability.
 
2.21 Brokers' and Finders' Fees. The Company has not incurred, nor will it incur, directly or indirectly, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby.
 
2.22 Employee Benefit Plans and Compensation.
 
(a) Definitions. For all purposes of this Agreement, the following terms shall have the following respective meanings:
 
(i) "Affiliate" shall mean any other person or entity under common control with the Company or Parent, as applicable, within the meaning of Section 414(b), (c), (m) or (o) of the Code, and the regulations issued thereunder.
 
(ii) "COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
 
(iii) "the Company Employee Plan" shall mean any plan, program, policy, practice, contract, agreement or other material arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written, unwritten or otherwise, funded or unfunded, including without limitation, each "employee benefit plan," within the meaning of Section 3(3) of ERISA which is or has been maintained, contributed to, or required to be contributed to, by the Company or any Affiliate for the benefit of any Employee, or with respect to which the Company or any Affiliate has or may have any liability or obligation.
(iv) "DOL" shall mean the United States Department of Labor.
 
(v) "Employee" shall mean any current or former employee, consultant or director of the Company or any Affiliate.
 
(vi) "Employment Agreement" shall mean each management, employment, severance, consulting, relocation, repatriation, expatriation, visas, work permit or other agreement, or contract between the Company or any Affiliate and any Employee.
 
(vii) "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended.
 
(viii) "FMLA" shall mean the Family Medical Leave Act of 1993, as amended.
 
(ix) "IRS" shall mean the United States Internal Revenue Service.
 
(x) "Pension Plan" shall mean each the Company Employee Plan, which is an "employee pension benefit plan," within the meaning of Section 3(2) of ERISA.
 
(b) Schedule. Schedule 2.22(b) contains an accurate and complete list of each the Company Employee Plan and each Employment Agreement. The Company has no plan or commitment to establish any new the Company Employee Plan or Employment Agreement, to modify any the Company Employee Plan or Employment Agreement (except to the extent required by law), or to enter into any the Company Employee Plan or Employee Agreement.
 
(c) Documents. The Company has provided to Parent correct and complete copies of: (i) all documents embodying each the Company Employee Plan and each Employment Agreement including (without limitation) all amendments thereto and all related trust documents, administrative service agreements, group annuity contracts, group insurance contracts, and policies pertaining to fiduciary liability insurance covering the fiduciaries for each Plan; (ii) the most recent annual actuarial valuations, if any, prepared for each the Company Employee Plan; (iii) the three (3) most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under ERISA or the Code in connection with each the Company Employee Plan; (iv) if the Company Employee Plan is funded, the most recent annual and periodic accounting of the Company Employee Plan assets; (v) the most recent summary plan description together with the summary(ies) of material modifications thereto, if any, required under ERISA with respect to each the Company Employee Plan; (vi) all IRS determination, opinion, notification and advisory letters, and all applications and correspondence to or from the IRS or the DOL with respect to any such application or letter; (vii) all communications material to any Employee or Employees relating to any the Company Employee Plan and any proposed the Company Employee Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events which would result in any material liability to the Company; (viii) all correspondence to or from any governmental agency relating to any the Company Employee Plan; (ix) all COBRA forms and related notices (or such forms and notices as required under comparable law); (x) the three (3) most recent plan years discrimination tests for each the Company Employee Plan; and (xi) all registration statements, annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with each Company Employee Plan.
 
(d) Employee Plan Compliance. Except as set forth on Schedule 2.22(d), (i) the Company has performed in all material respects all obligations required to be performed by it under, is not in material default or violation of, and has no knowledge of any material default or violation by any other party to each the Company Employee Plan, and each the Company Employee Plan has been established and maintained in all material respects in accordance with its terms and in compliance with all applicable laws, statutes, orders, rules and regulations, including but not limited to ERISA or the Code; (ii) each the Company Employee Plan intended to qualify under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code has either received a favorable determination, opinion, notification or advisory letter from the IRS with respect to each such Company Employee Plan as to its qualified status under the Code, including all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation, or has remaining a period of time under applicable Treasury regulations or IRS pronouncements in which to apply for such a letter and make any amendments necessary to obtain a favorable determination as to the qualified status of each such Company Employee Plan; (iii) no "prohibited transaction," within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 4975 of the Code or Section 408 of ERISA (or any administrative class exemption issued thereunder), has occurred with respect to any the Company Employee Plan; (iv) there are no actions, suits or claims pending, or, to the Knowledge of the Company, threatened or reasonably anticipated (other than routine claims for benefits) against any the Company Employee Plan or against the assets of any the Company Employee Plan; (v) each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time, without material liability to the Parent, the Subsidiary, or the Company (other than ordinary administration expenses); (vi) there are no audits, inquiries or proceedings pending or, to the Knowledge of the Company , threatened by the IRS or DOL with respect to any Company Employee Plan; and (vii) the Company is not subject to any penalty or tax with respect to any the Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code.
 
(e) No Pension Plans. The Company has not ever maintained, established, sponsored, participated in, or contributed to, any (i) Pension Plans subject to Title IV of ERISA or Section 412 of the Code; (ii) "multiemployer plan" within the meaning of Section (3)(37) of ERISA; or (iii) multiemployer plan, or to any plan described in Section 413 of the Code.
 
(f) No Post-Employment Obligations. No Company Employee Plan provides, or reflects or represents any liability to provide, retiree life insurance, retiree health or other retiree employee welfare benefits to any person for any reason, except as may be required by COBRA or other applicable statute, and the Company has never represented, promised or contracted (whether in oral or written form) to any Employee (either individually or to Employees as a group) or any other person that such Employee(s) or other person would be provided with retiree life insurance, retiree health or other retiree employee welfare benefit, except to the extent required by statute.
 
(g) Health Care Compliance. The Company has not , prior to the Effective Time and in any material respect, violated any of the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of the Health Insurance Portability and Accountability Act of 1996, the requirements of the Women's Health and Cancer Rights Act of 1998, the requirements of the Newborns' and Mothers' Health Protection Act of 1996, or any amendment to each such act, or any similar provisions of state law applicable to its Employees.
 
(h) Effect of Transaction.
 
(i) Execution of this Agreement and the consummation of the transactions contemplated hereby will not constitute an event under any Company Employee Plan, Employment Agreement, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Employee.
 
(ii) No payment or benefit which will or may be made by the Company with respect to any Employee or any other "disqualified individual" (as defined in Code Section 280G and the regulations thereunder) will be characterized as a "parachute payment," within the meaning of Section 280G(b)(2) of the Code.
 
(i) Employment Matters. The Company : (i) is in compliance with all applicable foreign, federal, state and local laws, rules and regulations respecting employment, employment practices, terms and conditions of employment and wages and hours, in each case, with respect to Employees; (ii) has withheld and reported all amounts required by law or by agreement to be withheld and reported with respect to wages, salaries and other payments to Employees; (iii) is not liable for any arrears of wages or any taxes or any penalty for failure to comply with any of the foregoing; and (iv) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any governmental authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for Employees (other than routine payments to be made in the normal course of business and consistent with past practice). There are no pending or, to the knowledge of the Company or Principals, threatened or reasonably anticipated claims or actions against the Company under any worker's compensation policy or long-term disability policy.
 
(j) Labor. No work stoppage or labor strike against the Company is pending, or, to the knowledge of the Company or Principals, threatened or reasonably anticipated. To the knowledge of the Company or Principals, there are neither any activities nor proceedings of any labor union to organize any Employees, nor have there ever been. There are no actions, suits, claims, labor disputes or grievances pending, or, to the knowledge of the Company or Principals, threatened or reasonably anticipated relating to any labor, safety or discrimination matters involving any Employee, including without limitation charges of unfair labor practices or discrimination complaints. The Company has not has engaged in any unfair labor practices within the meaning of the National Labor Relations Act. The Company is not presently, or has been in the past, a party to, or bound by, any collective bargaining agreement or union contract with respect to Employees and no collective bargaining agreement is being negotiated by the Company.
 
(k) Employees. Schedule 2.22(k) contains a true and complete list of the names and current salary rates and bonus commitments to all present employees of the Company and Schedule 2.22(k) or other Schedules attached as part of Section 2.22 contains a list of all contracts, agreements, Company Employee Plans, arrangements, commitments and understanding (formal and informal) pertaining to terms of employment, compensation, bonuses, profit sharing, stock purchases, stock repurchases, stock options, commissions, incentives, loans or loan guarantees, severance pay or benefits, change in control payments, use of the Company's property and related matters of the Company with any current or former officer, director, employee or consultant, and true and complete copies of all such contracts, agreements, plans, arrangements and understandings have been delivered to Parent heretofore.
 
(l) The Company will not have any responsibility for continuing any person in the employ (or retaining any person as a consultant) of the Subsidiary from and after the Effective Time or have any liability for any severance payments to or similar arrangements with any such person who shall cease to be an employee or consultant of the Company at or prior to the Effective Time.
(m) No facts or circumstances are known to exist that could provide a reasonable basis for a claim of wrongful termination or employment discrimination by any current or former employee of the Company against the Company.
 
2.23 Compliance with Laws; Relations with Governmental Entities. The Company has complied in all respects with, is not in violation of, and has not received any notices of violation with respect to, any foreign, federal, state or local statute, law or regulation. Neither the Company nor the Principal, nor, to the Knowledge of the Company or the Principal, any of the Company's officers, directors, employees or agents (or shareholders, distributors, representatives or other persons acting on the express, implied or apparent authority of the Company) have paid, given or received or have offered or promised to pay, give or receive, any bribe or other unlawful payment of money or other thing of value, any unlawful discount, or any other unlawful inducement, to or from any person or Governmental Entity in the United States or elsewhere in connection with or in furtherance of the business of the Company (including any offer, payment or promise to pay money or other thing of value (a) to any foreign official, political party (or official thereof) or candidate for political office for the purposes of influencing any act, decision or omission in order to assist the Company in obtaining business for or with, or directing business to, any person or entity, or (b) to any person or entity, while knowing that all or a portion of such money or other thing of value will be offered, given or promised to any such official or party for such purposes. To the knowledge of the Company or the Principal, the business of the Company is not in any manner dependent upon the making or receipt of such payments, discounts or other inducements. The Company nor the Principal has otherwise taken any action that would cause the Company to be in violation of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable Laws of similar effect.
 
2.24 Merger Tax Matters. The Company and the Principal represents that each of them understands that he or she must rely solely on his or her advisors and not on any statements or representations by Parent, or its agents, with respect to Tax consequences of the Merger and that the Company is relying on its own advisors as to such matters. No tax opinions are being required under Article V of this Agreement.
 
2.25 Intellectual Property. Schedule 2.25 contains a true, correct and complete listing of all Intellectual Property owned or licensed by or registered in the name of the Company and used or held for use in operations of the Business, all of which are transferable to Buyer by the sole act and deed of the Company , and no consent on the part of any other person is necessary to effectuate the transfer to Buyer of such Intellectual Property. The Company pays no royalty to anyone with respect to the Intellectual Property and has the right to bring action for the infringement thereof. The Company owns or possesses all rights to use all such Intellectual Property necessary to or useful for the conduct of the Business. The Company has not received any notice to the effect that any service rendered by the Company relating to the Business may infringe on any Intellectual Property right or other legally protectable right of another, nor does the Company or any Principal otherwise have any knowledge of any such infringement.
 
2.26 Customer Contracts. The contracts, agreements, understandings and commitments set forth and described in Schedule 2.26 (the "Customer Contracts") are the current forms of all of the types of customer contracts, agreements, commitments or understandings relating to the business and operations thereof to which the Company is a party. Separately described in Schedule 2.26 are all Customer Contracts of the Company that have generated $2,000 or more in revenue in any month since June 1, 2004 ("Significant Customer Contracts") and a list of all current customers of the Company.
The Company has not entered into any binding agreement with respect to any Customer Contract that could adversely affect the Company’s ability to enforce its rights under such Customer Contract. The Company has delivered true and complete copies of all written Significant Customer Contracts (and all amendments and modifications thereto) to Parent and Subsidiary prior to the execution of this Agreement, and each Significant Customer Contract represents the entire agreement between the Company and any other party to such Significant Customer Contract.
 
Since 120 days prior to the date of this Agreement, (i) no customer (or group of related customers) purchasing in the aggregate $25,000 in products and services over the past twelve (12) months-has terminated its relationship with the Company , and (ii) the Company has not received any written or oral communication from any customer (or group of related customers) purchasing in the aggregate $25,000 in products and services over the past twelve (12) months to the effect that such customer (or group of related customers) is experiencing financial difficulties which reasonably could be expected to affect adversely full and timely payment by such customer for services rendered by the Company.
 
2.27 Relationships with Suppliers. The Company or the Principal does not know of any written or oral communication, fact, event or action which exists or has occurred within 120 days prior to the date of this Agreement which would indicate that any current supplier to the Company or its Subsidiaries of items or services essential to the conduct of the business of the Company and its Subsidiaries may terminate or materially reduce its business with the Company.
 
2.28 Investment Representation; Legends.
 
(a) The Company understands that the Parent Common Stock and the Parent Stock Warrants to be issued pursuant to the terms of this Agreement have not been registered under the Securities Act of 1933 as amended (the "Securities Act") and the Parent Common Stock and Parent Stock Warrants are "restricted securities" as the term is defined in Rule 144 promulgated by the Securities and Exchange Commission (the "SEC") under the Securities Act and the Company shareholders cannot transfer any of such Parent Common Stock and Parent Stock Warrants unless such shares are subsequently registered under the Securities Act or in a transfer that, in the opinion of legal counsel to Parent, is exempt from such registration.
 
(b) Each Company shareholder has been advised that the Parent Company Stock and the Parent Stock Warrants issued hereunder have not been and are not being registered under the Securities Act or under the Blue Sky laws of any jurisdiction, and that Parent in issuing such shares is relying upon, among other things, the representations and warranties of the Company and Principals contained in this Section including that such issuance is a "private offering" and does not require compliance with the registration provisions of the Securities Act.
2.29 Stockholder Matters. The Principal is and shall continue to be the sole holder of all of the Company's capital stock as of the date hereof and as of the Closing Date is an accredited investor as defined in Rule 501(a) under the Securities Act of 1933, as amended.
 
2.30 Banking and Insurance.
 
(a) Schedule 2.30(a) contains a true and complete list of the names and locations of all financial institutions at which the Company maintains a checking account, deposit account, securities account, safety deposit box or other deposit or safekeeping arrangement, the number or other identification of all such accounts and arrangements and the names of all persons authorized to draw against any funds therein.
 
(b) Schedule 2.30(b) contains a true and complete list of all insurance policies and bonds and self insurance arrangements currently in force that cover or purport to cover risks or losses to or associated with the Company's business, operations, premises, properties, assets, employees, agents and directors and sets forth, with respect to each such policy, bond and self insurance arrangement, a description of the insured loss coverage, the expiration date and time of coverage, the dollar limitations of coverage, a general description of each deductible feature and principal exclusion and the premiums paid and to be paid prior to expiration. The Company has no obligation, liability or other commitment relating to any contract of insurance containing a provision for retrospective rating or adjustment of the Company's premium obligation. To the Company’s knowledge, no facts or circumstances exist that would cause the Company to be unable to renew its existing insurance coverage as and when the same shall expire other than possible increases in premiums that do not result from any act or omission of the Company.
 
2.31 Representations Complete. None of the representations or warranties made by the Company or the Principal in this Agreement, or to be furnished in or in connection with documents mailed or delivered to the Company Shareholders for use in soliciting their consent to this Agreement and the Merger, contains or, with respect to documents to be mailed to the Company Shareholders, will when mailed contain, any untrue statement of a material fact or omits or, with respect to documents to be mailed to the Company Shareholders, will when mailed omit, to state any material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. No representations and warranties by the Company and Principal in this Agreement and no statement in this Agreement or any document or certificate furnished or to be furnished to Parent or Subsidiary pursuant hereto contains or will contain any untrue statement or omits or will omit to state a fact necessary in order to make the statements contained therein not misleading. The Company and Principal have disclosed to Parent and Subsidiary all facts known to any of them material to the assets, liabilities, business, operation and property of the Company or its Subsidiaries. There are no facts known to the Company or Principal not yet disclosed which would adversely affect the Company's business, financial condition or future operations of the Company's business. All facts of material importance to the assets and to the business have been fully and truthfully disclosed to Parent and Subsidiary in this Agreement.
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUBSIDIARY
 
Parent and Subsidiary represent and warrant to the Company that on the date hereof and as of the Effective Date as though made at the Effective Time as follows:
 
3.01 Organization and Standing. Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of the State of Mississippi. Each of Parent and Subsidiary has the full and unrestricted corporate power and authority to carry on its business as currently conducted. Each of Parent and Subsidiary has the full and unrestricted corporate power and authority to execute and deliver this Agreement, the Related Agreements and each other document required hereunder and to carry out the transactions contemplated hereby and thereby. Parent has the full and unrestricted corporate power and authority to issue the Parent Common Stock and Parent Stock Warrants hereunder and to carry out the transactions to be carried out by it as contemplated by this Agreement and all other Related Agreements.
 
3.02 Authorization. The execution, delivery and performance by each of Parent and Subsidiary of this Agreement and each other Related Agreement, the fulfillment of and compliance with the respective terms and provisions hereof and thereof, and the consummation by each of Parent and Subsidiary of the transactions contemplated hereby and thereby have been duly authorized by their respective Board of Directors and subject to the approval of the shareholders of the Parent and shareholders of the Subsidiary (a) will not conflict with, or violate any term or provision of (i) any law having applicability to each of Parent and Subsidiary, the effect of which would have an adverse material effect on the business of Parent or Subsidiary, or (ii) any provision of the certificate of incorporation or bylaws of Parent or Subsidiary; (b) will not conflict with, or result in any material breach of, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, any material agreement to which Parent or Acquisition Sub is a party or by which it is bound; or (c) will not result in or require the creation or imposition of or result in the acceleration of any indebtedness, or of any encumbrance of any nature upon, or with respect to, Parent or Subsidiary. No other corporate action on the part of Parent or Subsidiary is necessary for Parent or Subsidiary to enter into this Agreement and all other Related Agreements and to consummate the transactions contemplated hereby and thereby, other than the approval of the Parent as the sole shareholder of the Subsidiary. The issuance by Parent of the Parent Common Stock and Parent Stock Warrants hereunder and the performance by Parent or Subsidiary of the terms and provisions of this Agreement and each other Related Agreements required to be performed by it have been duly authorized by all necessary corporate action of Parent (which authorization has not been modified or rescinded and is in full force and effect) other than the approval of the Parent as sole shareholder of the Subsidiary.
3.03 Binding Obligation. This Agreement and each other agreement to be executed by Parent or Subsidiary hereunder constitutes a valid and binding obligation of the Parent or Subsidiary, as applicable, enforceable against the Parent or Subsidiary, as applicable, in accordance with its terms, except as such enforceability may be subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies.
 
3.04 Issuance of Parent Common Stock and Parent Stock Warrants. All of the Parent Common Stock and Parent Stock Warrants to be issued pursuant to this Agreement have been duly authorized by Parent and, when issued in accordance with the terms of this Agreement, shall be validly issued, fully paid and nonassessable.
 
3.05 Litigation. There are no actions, suits, claims, arbitrations, proceedings or investigations pending, threatened or reasonably anticipated against, or involving Parent or Subsidiary or the transactions contemplated by this Agreement or any other Related Agreement, at law or in equity, or before or by any arbitrator or governmental authority, domestic or foreign, which could reasonably be expected to have a material adverse effect on the Parent or Subsidiary. Neither Parent nor Subsidiary is operating under, subject to or in default with respect to any order, award, writ, injunction, decree or judgment of any arbitrator or governmental authority relating to Parent or Subsidiary or their respective employees.
 
3.06 Securities and Exchange Commission Filings. Parent and Subsidiary have furnished the Company and the Principals with a true and complete copy of each final annual, quarterly and current report and each final prospectus filed by Parent with the SEC since January 1, 2002. No such filing with the SEC by Parent contained to Parent's Knowledge, as of the time of such filing, any untrue statement of a material fact or omitted a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
COVENANTS OF PARTIES PRIOR TO THE EFFECTIVE TIME
 
4.01 [Intentionally omitted]
 
4.02 Restrictions on Transfer; Legends. The Parent Common Stock and all the Parent Stock Warrants to be issued in the Merger shall be characterized as "restricted securities" for purposes of Rule 144 under the Securities Act, and each certificate representing any of such shares shall bear a legend identical or similar in effect to the following legend (together with any other legend or legends required by applicable state securities laws or otherwise):
 
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED THE "ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT AND SUCH LAWS OR IN COMPLIANCE WITH AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. IN ADDITION, THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN SALE RESTRICTIONS AS PROVIDED IN SECTION 8.11 OF THAT CERTAIN AGREEMENT AND PLAN OF MERGER BY AND AMONG I-55 TELECOMMUNICATIONS, L.L.C., XFONE, INC. AND XFONE USA, INC. DATED AS OF AUGUST 26, 2005.
 
4.03 Access to Information.
 
(a) The Company shall afford Parent, Subsidiary and its accountants, counsel and other representatives, reasonable access during the period prior to the Effective Date and during normal business hours upon reasonable advance notice to (i) all of the Company's properties, books, contracts, commitments and records; (ii) all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of the Company as Parent may reasonably request; and (iii) all employees of the Company as identified by Parent. The Company agrees to provide to Parent and its accountants, counsel and other representatives copies of internal financial statements (including Tax returns and supporting documentation) promptly upon request.
 
(b) No information or knowledge obtained in any investigation pursuant to this Section 4.03 shall affect or be deemed to modify: any representation or warranty contained herein, the conditions to the obligations of the parties to consummate the Merger in accordance with the terms and provisions hereof, or the indemnification obligations of the Company and the Principals.
(c) All information furnished by one party to another pursuant hereto shall be treated as the sole property of the party furnishing the information until consummation of the Merger contemplated hereby and, if such Merger shall not occur, the party receiving the information shall retrieve, if necessary, and return to the party which furnished such information all documents or other materials containing, reflecting or referring to such information, shall use its best efforts to keep confidential all of such information, and shall not directly or indirectly use such information for any competitive or other commercial purpose. If the Merger is not consummated, the obligation to keep such information confidential shall continue for two (2) years from the date the proposed Merger is abandoned and shall not apply to (i) any information which (a) the party receiving the information can establish by convincing evidence was already in its possession prior to the disclosure thereof by the party furnishing the information, (b) was then generally known to the public or set forth in public records, (c) became known to the public through no fault of the party receiving the information, or (d) was disclosed to the party receiving the information by a third party not bound by an obligation of confidentiality, or (ii) disclosures in accordance with an order of a court of competent jurisdiction.
 
4.04 Public Disclosure. The parties hereto agree that prior to the Effective Time, none of them will make or engage in any press release, publicity or other public disclosure of the matters which are the subject of this Agreement without the prior written consent of Parent and the Company, unless such party believes in good faith upon consultation with counsel that such press release, publicity or other public disclosure is required by law or legal process, in which event such party will give Parent and the Company as much advance notice thereof as is practicable under the circumstances and will give good faith consideration to any comments made with respect thereto by the other parties hereto prior to the time when such press release, publicity or other public disclosure is made.
 
4.05 Conduct Business in Ordinary Course. The Company shall, through the Management Date, use its best efforts to preserve its business and the assets and maintain its existing contracts and licenses and to preserve for the Subsidiary the present relationships with customers, employees, lessors and any other persons having business relations with the Company. Except as contemplated by this Agreement or as reasonably required to carry out its obligations hereunder, the Company shall, through the Management Date, maintain and service the business and the assets only in the ordinary course of business and, in addition, shall not (except to the extent that Parent has consented in advance in writing thereto: (i) enter into any agreement in connection with the business or assets that may not be terminated on less than thirty (30) days' notice or that may reasonably be expected to have a Material Adverse Effect on the business or assets, (ii) make any capital purchases or commitments relating to the Assets that exceed, individually or in the aggregate, $10,000; (iii) place, or allow to be placed, an Encumbrance on any of the assets, (iv) sell, assign, lease or otherwise transfer or dispose of any interest in any asset (other than in the ordinary course of business), (v) commit any act or omit to do any act, or engage in any activity or transaction or incur any obligation (by conduct or otherwise), that (individually or in the aggregate) reasonably could be expected to have a Material Adverse Effect on the business or assets; (vi) do or omit to do any act (or permit such action or omission) which reasonably could be expected to cause a breach of any contract or Governmental Authorizations, or (vii) take any action or fail to take any action that would reasonably be expected to cause any of the representations, warranties or covenants contained herein to be untrue or incorrect or incapable of being performed or satisfied on the Management Date. Through the Management Date, the Company shall not (except to the extent that Parent has consented in advance in writing thereto): (i) provide service or agree to provide service to any customer at rates that are different than those that were in effect for such customer (or would have been in effect for any new customer) as of June 23, 2005, (ii) offer any promotions or special incentives or arrangements to customers that were not being offered to all customers at June 23, 2005, including, but not limited to, any promotions or special incentives or arrangements with respect to pricing or usage, or (iii) amend or modify any Customer Contract. Prior to and through the day following the Management Date, the Company and its Subsidiaries shall maintain in full force and effect all of its existing casualty, liability, and other insurance in amounts not less than those in effect on the date hereof, except for changes in such insurance that are made in the Ordinary Course of Business.
4.06 Consents and Approvals. The Company shall use its best efforts to obtain, prior to the Closing, the consent of the Public Service Commissions in Louisiana and Mississippi and all waivers, consents and approvals including those as provided in Schedule 5.02(b), that are required in order to effect the Merger so as to preserve all rights of and benefits of the Company thereunder for the Subsidiary. Parent and Subsidiary shall use commercially reasonable efforts to assist the Company in the Company's efforts to obtain such waivers, consents and approvals. In addition, the Company and Parent and Subsidiary shall use their commercially reasonable efforts to obtain all other waivers, consents and approvals of all Governmental Authorities that are required in order for them to consummate the transactions contemplated by this Agreement or to perform the other obligations of the Company and Parent and Subsidiary hereunder. The Company and Parent and Subsidiary shall: (i) cooperate in the filing of all forms, notifications, reports and information, if any, required or reasonably deemed advisable pursuant to applicable statutes, rules, regulations or orders of any Governmental Authority or supra-governmental authority in connection with the transactions contemplated by this Agreement; and (ii) use their respective best efforts to cause any applicable waiting periods thereunder to expire and any objections to the transactions contemplated hereby to be withdrawn before the Effective Date. All expenses incurred in obtaining the waivers, consents and approvals described in this Section 4.06 shall be paid by the Company.
 
4.07 Financial Statements. Through the Management Date, the Company shall provide Parent with unaudited statements of assets and liabilities of the Company, and statements of revenues and expenses reflecting the results of operations of the Company for each month beginning with August 2005 within twenty (20) days of the end of each such month. All of the foregoing financial statements shall comply with the requirements concerning financial statements set forth in Section 2.07.
 
4.08 Notification of Certain Matters.
 
(a) Through the Management Date, the Company and the Principal, as the case may be, shall give prompt written notice to Parent of: (i) the occurrence or non-occurrence of any event, the occurrence or non-occurrence of which is likely to cause any representation or warranty of the Company or any of the Principals, respectively and as the case may be, contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Effective Date; and (ii) any failure of the Company or the Principal, as the case may be, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 4.08(a) shall not constitute an acknowledgment or admission of a breach of this Agreement. No disclosure by the Company or the Principal pursuant to this Section 4.08(a) shall be deemed to have cured any breach of any representation or warranty made in this Agreement for purposes of determining whether or not the conditions set forth in Article V have been satisfied, or be deemed to have cured any such breach of a representation or warranty in this Agreement and to have been disclosed as of the date of this Agreement for purposes of Article VI hereof.
 
(b) The Parent and Subsidiary shall give prompt written notice to the Company of: (i) the occurrence or non-occurrence of any event, the occurrence or non-occurrence of which is likely to cause any representation or warranty of the Parent and Subsidiary contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Effective Time; and (ii) any failure of the Parent and Subsidiary to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 4.08(b) shall not constitute an acknowledgment or admission of a breach of this Agreement. No disclosure by the Parent or Subsidiary pursuant to this Section 4.08(b) shall be deemed to have cured any breach of any representation or warranty made in this Agreement for purposes of determining whether or not the conditions set forth in Article VI have been satisfied, or be deemed to have cured any such breach of a representation or warranty in this Agreement and to have been disclosed as of the date of this Agreement for purposes of Article VI hereof.
4.09 Additional Documents and Further Assurances. Each party hereto, at the 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 the Merger and the transactions contemplated hereby.
 
4.10 Federal and State Securities Exemptions. The parties agree to use commercially reasonable efforts to ensure that the issuance of the Parent Stock Consideration will be exempt from registration under the Securities Act by reason of Section 4(2) and/or Regulation D thereof (the "Private Placement Exemption").
 
4.11 Shareholder List. As of a date which is two (2) calendar days prior to the Effective Date, the Company shall provide Parent and its counsel with a statement certified by the principal executive officer of the Company and Principals setting forth any changes which would have been required to be set forth on Schedule 2.03 or Section 2.29 as if such had been made and certification that there are no outstanding options or other rights to any equity interest in the Company (the "Updated Capitalization Certificate").
 
4.12 Non-Competition and Non-Solicitation.
 
(a) As a material inducement to Parent and Subsidiary to enter into and perform their obligations under this Agreement, and in order to preserve and protect the trade secrets and proprietary, confidential information of Parent and Subsidiary after the Closing, for a period of two (2) years following the date of this Agreement (the "Noncompetition Period"), the Principal will not, directly or indirectly, either for himself or for any partnership, limited liability company, individual, corporation, joint venture or any other entity "participate in" (as defined below) any business (including, without limitation, any division, group or franchise of a larger organization) which engages in any "Internet Services and Telecommunications Business" in the parishes and counties listed on Exhibit “E” (the "Restricted Area"). For purposes of this Agreement, "Internet Services and Telecommunications Business" shall mean the business of providing any type of telecommunication services or internet access services to any person or customer within the Restricted Area, including, without limitation, local, long distance, broadband, dial up data services, wireless, DSL, Voice-over-Internet Protocol (VoIP) and any other service or product being offered or provided by the Parent or Subsidiary or any of its affiliates. For purposes of this Agreement, the term "participate in" shall include, without limitation, having any direct or indirect interest in any corporation, partnership, limited liability company, joint venture or other entity, whether as a sole proprietor, owner, shareholder, partner, member, manager, joint venturer, creditor or otherwise, or rendering any direct or indirect service or assistance to any individual corporation, partnership, limited liability company, joint venture and other business entity (whether as a director, officer, manager, supervisor, employee, agent, consultant or otherwise). Notwithstanding the foregoing, nothing in this Section 4.12 shall prohibit any Principal or any other Non-Compete Party from owning not more than five percent (5%) of the debt or equity securities of a publicly traded corporation which may compete with Parent.
 
(b) During the Noncompetition Period, and in order to preserve and protect the trade secrets and proprietary, confidential information of Parent and the Subsidiary after the Effective Date, the Principal shall not (i) induce or attempt to induce any employee of Parent or the Subsidiary to leave the employ of Parent or the Subsidiary, or in any way interfere with the relationship between Parent or Subsidiary or any employee thereof, (ii) hire directly or through another entity any individual employed by Parent or the Subsidiary who was previously employed by the Company, or (iii) induce or attempt to induce any customer, supplier, licensee, distributor or other business relation of Parent or the Subsidiary (including those previously with the Company) to cease doing business with Parent or the Subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee, distributor or business relation and Parent or the Subsidiary (including, without limitation, making any negative statements or communications concerning Parent or the Subsidiary).
(c) If, at the time of enforcement of this Section 4.12, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. The Principal with respect to the terms of this Section 4.12 agrees that the restrictions contained in this Section 4.12 are reasonable.
 
(d) If at any time during the Noncompetition Period the Principal desires to participate in an activity that he believes might be prohibited by this Section 4.12, such person may request in writing (a "Clarification Request") a determination by Parent as to whether such proposed activity would violate this Section 4.12. Parent shall respond in writing to such Clarification Request (a "Clarification Response") within thirty (30) days of receipt thereof from the requesting person.
 
(e) The Principal by execution of this Agreement agrees to the terms of this Section 4.12 as to himself.
 
(f) Nothing in this Section 4.12 shall be construed to prohibit Principal from acting as a reseller of Parent’s or Subsidiary’s services, acting as an agent of Parent or Subsidiary, or otherwise from earning commissions by obtaining customers for Parent or Subsidiary.
 
4.13 Approval of Shareholders. The Principal by execution hereof does hereby as the sole owner of all of the Company Common Stock, which constitutes all of the equity of the Company, approve for and on behalf of the Company this Agreement and Related Agreements and the Merger and the execution and delivery of this Agreement and the Related Agreements by the Company and the consummation of the Merger and the transactions contemplated by this Agreement and the Related Agreements and the performance by the Company through its officers and directors/managers of all of its obligations as provided in this Agreement and the Related Agreements in order to consummate the Merger and transactions contemplated under this Agreement and the Related Agreements.
 
4.14 No Shop. Until such time, if any, as this Agreement is terminated pursuant to Article VII, neither the Company or the Principal will not and each of their representatives will not directly or indirectly solicit, initiate, or encourage any inquiries or proposals from, any person (other than Parent) relating to any transaction involving the sale of the business or assets of the Company, or any of the capital stock of the Company, or any merger, consolidation, business combination, or similar transaction involving the Company.
CONDITIONS TO THE MERGER
 
5.01 Conditions to Obligations of Each Party to Effect the Merger. The respective obligations of the Company, Parent and Subsidiary to effect the Merger shall be subject to the satisfaction at or prior to the Effective Date of the following conditions:
 
(a) Shareholder Approval. This Agreement and the Merger shall be approved and adopted by the shareholders of Subsidiary by the requisite vote under applicable law and the Subsidiary’s Certificate of Incorporation.
 
(b) No Order. No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Merger illegal or otherwise prohibiting consummation of the Merger.
 
(c) No Injunctions or Restraints; Illegality. No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger shall be in effect, nor shall any proceeding brought by an administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, seeking any of the foregoing be pending.
 
(d) Articles of Merger. The Articles of Merger shall have been filed with the Secretary of State of the State of Mississippi and the Certificate of Merger shall have been filed with the Louisiana Secretary of State.
 
(e) Tax-Free Merger. The Merger and the proposed transaction among Parent, Subsidiary and I-55 Internet Services, Inc., taken individually or together, shall have no adverse tax consequences to Company, I-55 Internet Services, Inc., or either of their shareholders.
 
(f) Debt Restructure. The Parent and Subsidiary shall have entered into agreements for the terms for repayment or purchase of the debt due from Company to the Principal, Tricou Construction, Bon Aire Estates, Bon Aire Utility, D▇▇▇▇ ▇▇▇▇▇▇, Intercosmos and J▇▇▇ ▇▇▇▇▇, all on terms satisfactory to Parent and Subsidiary.
 
(g) BellSouth Credits. On or before the Management Date, Parent shall create an escrow satisfactory to Principal, Parent and Subsidiary into which Parent shall deposit $100,000 in Parent Common Stock and $50,000 in Parent Stock Warrants, to be held in the name of the escrow agent, to be released to Principal if and to the extent that Principal and/or Subsidiary recovers from BellSouth monies or payables not reflected on the financials of the Company (other than the new receivable reflected on Schedule 2.09(g)).  The escrow shall terminate on the Closing Date, and any stock or warrants remaining in the escrow on the Closing Date shall revert to Parent.
5.02 Conditions to the Obligations of Parent and Subsidiary. The obligation of Parent and Subsidiary to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived, in writing, exclusively by Parent:
 
(a) Representations, Warranties and Covenants.
 
(i) The representations and warranties of the Company and the Principal in this Agreement (other than the representations and warranties of the Company and the Principal as of a specified date, which will be true and correct as of such date) shall be true and correct on and as of: (A) the date of this Agreement and (B) the Effective Time as though such representations and warranties were made on and as of the Effective Time (it being understood that, for purposes determining the accuracy of each such representation and warranty pursuant to clauses (A) and (B), any update of or modification to the Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded).
 
(ii) Each of the Company and the Principal shall have performed and complied with all covenants and obligations under this Agreement required to be performed and complied with by such parties as of the Effective Time.
 
(b) Third Party Consents. Parent shall have been furnished with evidence satisfactory to it that the Company has obtained all consents, waivers, approvals, and assignments listed in Schedule 5.02(b).
 
(c) No Material Adverse Change. There shall not have occurred any event or condition of any character since the date of this Agreement that has had or is reasonably likely to have a material adverse effect on the Company or its business, assets or prospects.
 
(d) Certificate of the Company and the Principal. Parent shall have received a certificate, validly executed by the Principal and the principal executive officer of the Company for and on its behalf, to the effect that, as of the Closing:
 
(i) all representations and warranties made by the Company and the Principal in this Agreement (other than the representations and warranties of the Company and the Principal as of a specified date, which will be true and correct as of such date) were true and correct on and as of: (A) the date of this Agreement and (B) the Effective Date as though such representations and warranties were made on and as of the Effective Time;
 
(ii) all covenants and obligations under this Agreement to be performed by the Company or the Principal on or before the Closing have been so performed; and
 
(iii) the conditions to the obligations of Parent and Subsidiary set forth in Section 5.02 have been satisfied (unless otherwise waived in accordance with the terms hereof).
(e) Certificate of Secretary of the Company. Parent shall have received a certificate, validly executed by the Secretary of the Company, certifying as to (i) the correct form and effectiveness of the Articles of Organization and the Operating Agreement of the Company, including all amendments thereto; and (ii) the valid adoption of resolutions of the board of directors of the Company and the sole Company Shareholder Member approving this Agreement and the consummation of the transactions contemplated hereby.
 
(f) Certificate of Good Standing. Parent shall have received certificates of good standing of the Company from the Secretary of State of the State of Mississippi and Louisiana and any other jurisdiction where the Company is required to qualify to do business, each dated within ten (10) business days prior to the Closing.
 
(g) Working Capital Requirement. The Company’s "Working Capital" (as defined herein) as of the Management Date shall not be more than a deficit of $10,000.00 ("Working Capital Requirement"), as shown on a balance sheet and Profit and Loss Statement and combining worksheet (prepared in accordance with GAAP and consistent with the December 31, 2004 Financials) as of the Management Date ("Management Date Financials"). "Working Capital" shall mean the current assets less the total liabilities (excluding the Long Term Liabilities as defined in Section 5.02(q)) as determined in accordance with GAAP. In the event that the Working Capital Requirement is not met, the Parent and Subsidiary may nevertheless elect to close and reduce the Parent Stock Consideration by an amount equal to the difference between the Working Capital Requirement and the actual Working Capital Deficit. In the event that the Working Capital deficit is less than the Working Capital Requirement, then the Parent Stock Consideration shall be increased by an amount equal to the amount by which the Working Capital Deficit is less than the Working Capital Requirement.
 
(h) [Intentionally Omitted]
 
(i) Shareholder List. Parent shall have received from the principal executive officer of the Company a certification that the Principal is the sole owner and holder of all of the Company Common Stock.
 
(j) Amendments to Certain Documents. The Parent shall have received a duly executed amendment or restated agreement on terms satisfactory to the Parent for the following agreements: None.
 
(k) Escrow Agreement. The Principal and Escrow Agent shall have entered into the Escrow Agreement in the form of Exhibit B hereto.
 
(l) Irrevocable Proxy from Principals. The Principal shall have entered into an Irrevocable Proxy in form reasonably satisfactory to Parent in which each Principal agrees to irrevocably appoint G▇▇ ▇▇▇▇▇▇▇▇▇ or such other party designated by Parent as proxy to vote the Principal's Parent Common Stock or any Parent Common Stock issued to or acquired hereafter by the Principal whether from the exercise of any of the Parent Stock Warrants or any other stock options or warrants granted hereafter or otherwise until such time as the Principal sells all of his Parent Common Stock, subject to the condition that if at any time, G▇▇ ▇▇▇▇▇▇▇▇▇ and A▇▇▇▇▇▇ ▇▇▇▇▇▇ together command less than 50% of the voting rights of Parent, then such proxies shall automatically terminate.
(m) Management/Operating Agreement. Contemporaneous with the closing of the Merger of I-55 Internet Services, Inc. with and into the Subsidiary pursuant to that certain Agreement and Plan of Merger among them and Parent dated August 18, 2005, the Company shall have entered into a Management/Operating Agreement with the Parent or Subsidiary in the form of Exhibit C. 
 
(n) Merger with I-55 Internet Services, Inc. The merger of I-55 Internet Services, Inc. into the Subsidiary shall have previously closed or shall close simultaneously with the Merger under this Agreement.
 
(o) Releases. Each officer and director shall have executed and delivered a Release in substantially the form attached hereto as Exhibit “D.”
 
(p) Audit. The Company shall have completed an audit of fiscal year 2004 and a review of the six months ending June 30, 2005 and the audited financial statements issued in connection with the audit for such fiscal year shall be in form and substance satisfactory to Parent and Subsidiary.
 
(q) Long Term Liabilities. The sum of the Long Term Liabilities (as defined below) as of the Management Date shall not exceed $1,200,000 as shown on the Management Date Financials. The term “Long Term Liabilities” shall mean the amount due for the following: Note Payable - Taqua; Note Payable to Ran▇▇ ▇▇▇▇▇▇; ▇ote Payable - Ren▇ ▇▇▇▇▇▇; ▇ote Payable to Dan▇▇ ▇▇▇▇▇▇; ▇ote Payable to Intercosmos; Note Payable to Loan Pay - New Borrowings, any debt or amounts due to AmSouth Bank and any other debt for borrowed money or purchase or lease of assets. In the event that the sum of the Long Term Liabilities exceeds $1,200,000 as of the Management Date, the Parent and Subsidiary may nevertheless elect to close and reduce the Parent Stock Consideration by an amount equal to the amount by which the sum of the Long Term Liabilities exceeds $1,200,000. In the event the Long Term Liabilities are less than $1,200,000 (which shall not include any adjustments due to the Debt Restructure as required by Section 5.02(h) hereof), then the Parent Stock Consideration shall be increased by an amount equal to the amount by which Long Term Liabilities are less than $1,200,000.
 
5.03 Conditions to Obligations of the Company and the Principals. The obligations of the Company and the Principal to consummate and effect this Agreement and the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived, in writing, exclusively by the Company:
 
(a) Representations, Warranties and Covenants.
 
(i) The representations and warranties of Parent and Subsidiary in this Agreement (other than the representations and warranties of Parent as of a specified date, which will be true and correct as of such date) shall be true and correct on and as of: (A) the date of this Agreement and (B) the Effective Time as though such representations and warranties were made on and as of the Effective Time (it being understood that, for purposes determining the accuracy of each such representation and warranty pursuant to clauses (A) and (B), any update of or modification to the Parent Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded).
(ii) Each of Parent and Subsidiary shall have performed and complied with all covenants and obligations of this Agreement required to be performed and complied with by it as of the Effective Time.
 
(b) Certificate of Parent. The Company shall have received a certificate executed on behalf of Parent and Subsidiary by the Chief Executive Officer of each to the effect that, as of the Closing:
 
(i) all representations and warranties made by the Parent and Subsidiary in this Agreement (other than the representations and warranties of the Parent and Subsidiary as of a specified date, which will be true and correct as of such date) were true and correct on and as of: (A) the date of this Agreement and (B) the Effective Time as though such representations and warranties were made on and as of the Effective Time;
 
(ii) all covenants and obligations under this Agreement to be performed by Parent and Subsidiary on or before the Closing have been so performed; and
 
(iii) the conditions to the obligations of the Company and the Principals set forth in Section 5.03 have been satisfied (unless otherwise waived in accordance with the terms hereof).
 
(c) No Material Adverse Change. There shall not have occurred any event or condition of any character since the date of this Agreement that has had or is reasonably likely to have a Parent Material Adverse Effect.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; POST-CLOSING COVENANTS
 
6.01 Survival of Representations, Warranties and Covenants.
 
(a) The representations and warranties of the Company and the Principal contained in this Agreement, or in any certificate or other instrument delivered pursuant to this Agreement, shall remain in effect until, and will expire upon the third year following the Closing Date (the "Termination Date"), except for the representations and warranties set forth in Section 2.10 (Tax Matters) which shall survive the Termination Date until the expiration of the applicable statute of limitations. The representations and warranties of the Parent and the Subsidiary contained in this Agreement, or in any certificate or other instrument delivered pursuant to this Agreement will expire upon the Termination Date, provided that the maximum liability of the Parent and Subsidiary for any breach of a representation or warranty shall be fifty percent of the Aggregate Merger Consideration, and any liability shall be satisfied by the issuance of a number of shares of Parent Common Stock and Parent Stock Warrants in a ratio of 2/3 Parent Common Stock and 1/3 Parent Stock Warrants with a value equal to the amount of such liability as established at the time of payment using the same formula as in the definition of such terms as provided in Section 1.03 hereof. Notwithstanding the foregoing:
 
(i) the Termination Date or limitation or indemnification as set forth in 6.2(e) shall not apply to claims based upon intentional fraud; and
 
(ii) the representation, warranty, covenant or obligation that is the subject matter of a timely submitted Claim Notice (as defined in Section 6.01(c)) shall not so expire with respect to such Claim Notice or any subsequent Claim Notice that is reasonably related to the subject matter of such Claim Notice, but rather shall remain in full force and effect until such time as each and every claim that is based upon, or that reasonably relates to, any breach or alleged breach of such representation, warranty, covenant or obligation and that is reasonably related to the subject matter of such Claim Notice or any such subsequent Claim Notice has been fully and finally resolved, either by means of a written settlement agreement executed by the Principal and the Parent and Subsidiary or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
 
(b) No disclosure in any Schedule referred to in Article II will be deemed adequate to disclose an exception to a representation or warranty made in this Agreement unless the applicable disclosure schedule identifies the exception. Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item will not be deemed adequate to disclose an exception to a representation or warranty made in this Agreement (unless the representation or warranty regards the existence of the document or other item itself).
 
(c) For purposes of this Agreement, a "Claim Notice" relating to a particular representation, warranty, covenant or obligation shall be deemed to have been given if the Parent or Subsidiary, acting in good faith, delivers within the time periods provided in Section 6.01(a) to the Principals and the Escrow Agent a written notice stating that such Indemnified Party believes that there is or has been a possible breach of such representation, warranty, covenant or obligation and containing (i) a brief description of the circumstances supporting such Indemnified Party's belief that there is or has been such a possible breach; and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential damages that have arisen and may arise as a direct or indirect result of such possible breach. For purposes of this Agreement, "Parent Indemnified Parties" shall mean the following persons and entities: (a) Parent; (b) Parent's current and future affiliates, including Subsidiary; (c) the respective officers, directors, employees and agents of the persons and entities referred to in clauses "(a)" and "(b)" above; and (d) the respective successors and assigns of the persons and entities referred to in clauses "(a)" and "(b)" above; provided, however, that none of the Company Shareholders shall be deemed to be a Parent Indemnified Party.
6.02 Indemnification by the Principals; Escrow Fund.
 
(a) The Principal agrees that, subject to the limits of Sections 6.01 and 6.02(b)-(e), from and after the Effective Date, the Principal shall indemnify and hold the Parent Indemnified Parties harmless against all claims, losses, liabilities, damages, lawsuits, administrative proceedings, investigations, audits, demands, assessments, adjustments, judgments, settlement payments, penalties, fines, interest, deficiencies, costs and expenses, including reasonable attorneys' fees and expenses of investigation and defense (individually a "Loss" and collectively "Losses") incurred by the Parent Indemnified Parties directly or indirectly as a result of:
 
(i) any inaccuracy or breach of a representation or warranty of the Company or any Principal contained in: (A) this Agreement both as of the date of this Agreement and as of the Effective Time as if made on and as of the Effective Time; (B) any of the agreements executed in connection with this Agreement; or (C) or in any certificate, instrument or other document delivered by the Company or any Principal pursuant to the terms of this Agreement; or
 
(ii) any failure by the Company or the Principal to perform or comply with any covenant contained in this Agreement or in any of the agreements executed in connection with this Agreement.
 
 (b) (i) As security for the indemnity provided to the Parent Indemnified Parties in this Article VI and by virtue of this Agreement and the Articles of Merger, the Principals agree that an amount of the Parent Company Stock and Parent Stock Warrants to which they are entitled at the Effective Date of the Merger equal to fifty percent (50%) of the Aggregate Merger Consideration (the "Escrow Shares") shall be deposited with the Escrow Agent and held in the name of the Escrow Agent pursuant to the Escrow Agreement and the Principal directs the Parent to deposit the Escrow Shares (plus any additional shares as may be issued in respect of any stock split, stock dividend or recapitalization effected by Parent after the Effective Time with respect to the Escrow Shares) with the Escrow Agent, without any act of the Principals, such deposit to constitute an escrow fund (the "Escrow Fund"). The escrow shall be funded in the same proportions of Parent Company Stock to Parent Stock Warrant that the Principal received in connection with the Merger. It is understood and agreed that the portion of the Aggregate Merger Consideration deposited into the Escrow Fund by the Principal shall be issued and outstanding on the books of Parent, and the Principal shall be the owners thereof, but registered in the Escrow Agent's name until the Escrow Agreement is terminated.
Any cash dividends paid on Parent Common Stock in the Escrow Fund shall be deposited with the Escrow Agent and become part of the Escrow Fund. The Principal shall have voting rights with respect to the shares of Parent Common Stock contributed to the Escrow Fund (and on any voting securities added to the Escrow Fund in respect of such shares of Parent Common Stock) so long as such shares of Parent Common Stock or other voting securities are held in the Escrow Fund. The Escrow Fund shall be in existence immediately following the Effective Time and shall terminate at 5:00 p.m., Central Time, on the second year from the Effective Date, unless sooner terminated due to the distribution of the Escrow Fund at an earlier date or unless the termination date is extended due to pending Claims Notice(s) for indemnification in accordance with this Section 6.03. For purposes of satisfying the indemnification obligations of this Section 6.02, the shares of Parent Common Stock and Parent Stock Warrants in the Escrow Fund shall be valued as of (i) the date that the Parent Indemnified Party sends notice to release a portion of the Escrow Fund in satisfaction of a Loss as determined in accordance with this Article VI or (ii) the date that the Principals request a release of a portion of the Escrow Fund in accordance with Section 6.02(b); provided if there is a counter-notice to the requested release from the Escrow given disputing the requested release from the Escrow, then the date for valuation shall be suspended until such time as the Escrow Agent is requested to make payment upon a joint instruction or the date of a final non-appealable order of a court of competent jurisdiction is entered as to the disputed release. The Parent Common Stock shall be valued at the closing trading price for the ten trading days immediately preceding the valuation date and the Parent Stock Warrants shall be valued at the price at which they were valued and issued on the Effective Date in connection with the Merger. The Escrow Agent shall satisfy any indemnification obligations first with the Parent Common Stock and then with the Parent Stock Warrants. The Escrow Fund shall be governed by the terms of this Agreement and the Escrow Agreement. The Parent Indemnified Parties' right to recover any property held pursuant to the Escrow Agreement shall be in addition to and not in limitation of any other rights or remedies of the Parent Indemnified Parties at law or in equity.
 
(ii) The percentage set forth below of the Escrow Fund shall be released upon the happening of the following events provided that at the date of the required release that there remains sufficient Escrow Funds to cover the maximum amount of any pending Claims Notice(s) as provided in this Article VI: (1) one-half (1/2) shall be released within 60 days after the end of the first full 12 month period following the Effective Date ("Post Close Year 1" and each succeeding 12 month period is hereinafter referred to as Post Close Year 2, etc.); and (2) One-half (1/2) shall be released within 60 days after the end of Post Close Year 2 (less an amount equal in value to the maximum amount claimed to satisfy any Pending Claims Notices) shall be released on the third anniversary date of the Effective Date. If there are any Pending Claims outstanding at the second anniversary of the Effective Date, the Escrow Agreement shall continue until final resolution of any such Pending Claims in accordance with this Article VI.
 
(c) For purposes of quantifying the amount owing to any Parent Indemnified Party under this Section 6.02 resulting from a Loss or Losses caused by a breach of any representation or warranty given in Article II hereof, the term material adverse effect or other materiality qualification or any similar qualification contained or incorporated directly or indirectly in such representation or warranty shall be disregarded.
 
(d) For purposes of this Agreement and without limitation, a breach of the representations and warranties included in Sections 2.01, 2.02 and 2.03 hereof will be deemed a "willful misrepresentation."
 
(e) Limitation on Indemnification. Notwithstanding any provision of this Agreement to the contrary, after the Effective Time, no Parent Indemnified Party shall be entitled to indemnification until such Parent Indemnified Parties suffer Losses in excess of $25,000.00 in the aggregate (the "Basket Amount"), in which case the Parent Indemnified Parties shall be entitled to recover all Losses including the Basket Amount; provided, however, any amounts required to be paid resulting from any failure by the Company or the Principal to perform or comply with any covenant contained in this Agreement or any Related Agreement shall not be subject to such Basket Amount; and provided further, however, that any amounts required to be paid by the Parent or the Surviving Corporation as a result of the Company's breach of, or any inaccuracy contained in, Section 2.21 herein shall not be subject to such Basket Amount. The total liability of the Principal shall be limited to his Escrow Shares then remaining in the escrow, and the Principal shall not have any personal liability beyond his Escrow Shares unless the claim is based upon intentional fraud by the Principal.
 
6.03 Indemnification Procedures. All claims for indemnification under Sec6.02 shall be asserted and resolved as follows:
 
(a) Third-Party Claims. In the event any Parent Indemnified Party becomes aware of a third-party claim that such Parent Indemnified Party believes may result in a demand under Section 6.02, such Parent Indemnified Party shall notify the Principal of such claim, and the Principal shall be entitled, at its expense, to participate in, but not to determine or conduct, the defense of such claim. The Parent Indemnified Party shall have the right in its sole discretion to conduct the defense of and settle any such claim; provided, however, that except with the written consent of the Principal, no settlement of any such claim with third-party claimants shall alone be determinative of the amount of Losses relating to such matter. In the event that the Principal has consented to any such settlement, then the Principal shall not have the power or authority to object to the amount of any claim by any Parent Indemnified Party with respect to such settlement.
 
(b) Non-Third Party Claims. In the event a Parent Indemnified Party has a claim hereunder that does not involve a claim being asserted against or sought to be collected by a third party, the Parent Indemnified Party shall with reasonable promptness send a Claim Notice with respect to such claim to the Principal and the Escrow Agent (if applicable). If the Principal does not notify the Parent Indemnified Party within ten (10) calendar days from the date of receipt of such Claim Notice that indemnifying party disputes such claim, the amount of such claim shall be conclusively deemed a liability of the indemnifying party hereunder. In case the Principal shall object in writing to any claim made in accordance with this Section 6.03(b), the Parent Indemnified Party shall have fifteen (15) calendar days to respond in a written statement to the objection of the Principal. If after such fifteen (15) calendar day period there remains a dispute as to any claim, the parties shall attempt in good faith for sixty (60) calendar days to agree upon the rights of the respective parties with respect to each of such claims. If the parties should so agree, a memorandum setting forth such agreement shall be prepared and signed by all parties. If the parties do not so agree, and a claim has been made against the Escrow Fund, the Escrow Agent shall refrain from disbursing any portion of the Escrow Fund until resolution of such dispute in the form of (i) a final written decision of an arbitrator or (ii) a final non-appealable order of a court of competent jurisdiction.
 
(c) The Parent Indemnified Party's failure to give reasonably prompt notice to the Principal of any actual, threatened or possible claim or demand which may give rise to a right of indemnification hereunder shall not relieve any indemnifying party of any liability which the indemnifying party may have to the Parent Indemnified Party unless the failure to give such notice materially and adversely prejudiced the indemnifying party.
 
6.04 No Contribution. The Principal waives, and acknowledges and agrees that it shall not have and shall not exercise or assert (or attempt to exercise or assert), any right of contribution, right of indemnity or other right or remedy against the Subsidiary in connection with any indemnification or other rights any Indemnified Party may have under or in connection with this Agreement.
 
6.05 Benefit Plans. Each former Company employee who is offered and accepts employment with Subsidiary shall be entitled to credit for time served with the Company for any purpose relating to the Subsidiary’s or Parent’s plans, including the amount of any benefits, whether such benefits are available, and the vesting of any benefits. Nothing in this Section 6.05 obligates Subsidiary to offer employment to any Company employee.
TERMINATION, AMENDMENT AND WAIVER
 
7.01 Termination. Except as provided in Section 7.02 hereof, this Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time:
 
(a) by mutual agreement of the Company and Parent;
 
(b) by Parent or the Company if the Effective Time has not occurred by December 31, 2005 unless the only reason the merger cannot be consummated is due to the failure to have obtained the necessary Public Service Commission regulatory approvals or ▇▇▇▇ South consent required to consummate the Merger, in which case such date shall be extended to April 30, 2006; provided, however, that the right to terminate this Agreement under this Section 7.01(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement.
 
Where action is taken to terminate this Agreement pursuant to this Section 7.01, it shall be sufficient for such action to be authorized by the Board of Directors of the party taking such action.
 
7.02 Effect of Termination.
 
(a) In the event of termination of this Agreement as provided in Section 7.01 hereof, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of Parent, Subsidiary, the Company, the Principal, or their respective officers, directors or shareholders; provided, however, that each party shall remain liable for any breaches of this Agreement prior to its termination and the Break-Up Fee as set forth in 7.02(b) hereof for any such breach; and provided further, however, that, the provisions of Sections 4.03(c), 4.04, 7.03 and Article VIII hereof and this Section 7.02 shall remain in full force and effect and survive any termination of this Agreement.
 
(b) Break-Up Fee. In the event that Company does not close the Merger as a result of the receipt, consideration or acceptance of an offer relating to any transaction involving the sale of the business or the assets of the Company, or any of the Capital Stock of the Company, or any merger, consolidation, business combination, or similar transaction involving the Company, then Company shall pay to Parent a Break-Up Fee equal to $500,000, payable immediately.
 
7.03 Expenses; Termination Fees.
 
(a) Except as set forth in Section 7.03(b), all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement (i) by the Company and the Principals shall be paid by the Company and the Principals and (ii) by the Parent and Subsidiary shall be paid by the Parent, whether or not the Merger is consummated.
(b) Parent, on the one hand, and the Company, on the other hand, agree that in the event either party terminates this Agreement prior to the Effective Time for any reason other than those allowable under Section 7.01, then the terminating party shall pay to the other party the amount of actual fees and expenses incurred by such party in connection with this transaction.
 
7.04 Amendment. This Agreement may be amended by the parties at any time by execution of an instrument in writing signed on behalf of each of the parties hereto.
 
7.05 Extension; Waiver. At any time prior to the Effective Time, Parent and Acquisition Sub, on the one hand, and the Company, on the other hand, may, to the extent legally allowed, (i) extend the time for the performance of any of the obligations of the other party hereto; (ii) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto; and (iii) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.
ARTICLE VIII
GENERAL PROVISIONS
 
8.01 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by registered or certified mail (return receipt requested) or sent via facsimile (with acknowledgment of complete transmission) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice); provided, however, that notices sent by mail will not be deemed given until received:
         (a) if to Parent or Subsidiary, to:
 
XFone, Inc.
 
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
 
▇▇▇ ▇▇▇▇ ▇▇▇▇
 
▇▇▇▇▇▇, ▇▇▇▇▇▇
 
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ USA
 
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
 
Telephone: ▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
 
Facsimile: ▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
 
Email:  ▇▇▇@▇▇▇▇▇.▇▇▇
   
 
and
   
 
Xfone USA, Inc.
 
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
 
▇▇▇▇▇ ▇▇▇
 
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
 
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
 
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
 
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
 
Email:  ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
   
 
with a copy to:
   
 
Oberon Securities, LLC
 
▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇
 
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
 
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
 
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
 
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
 
Email:  ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
   
 
and
   
 
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Winter & Stennis, P.A.
 
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (39202)
 
P. O. ▇▇▇ ▇▇▇
 
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
 
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
 
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
 
Facsimile: 601-949-4804
 
Email:  ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(b) if to the Company or the Principals, to: 
 
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
 
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
 
▇▇▇▇▇ ▇▇▇▇
 
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
 
Telephone:  ▇▇▇-▇▇▇-▇▇▇▇
 
Email:  ▇▇▇▇▇▇▇@▇-▇▇▇▇▇▇▇▇▇.▇▇▇
   
 
  With a copy to:
   
 
▇▇▇▇▇ ▇▇▇▇▇
 
Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
 
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
 
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
 
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
 
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
 
Email:  ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇

8.02 Interpretation. The words "include," "includes" and "including" when used herein shall be deemed in each case to be followed by the words "without limitation." References to "property" includes both intangible and tangible property. References to "assets" includes both intangible and tangible assets. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
 
8.03 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which, when taken together, shall be considered one and the same agreement.
8.04 Entire Agreement; Assignment. This Agreement and the documents and instruments and other agreements among the parties hereto referenced herein: (i) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings both written and oral, among the parties with respect to the subject matter hereof; and (ii) shall not be assigned by operation of law or otherwise.
 
8.05 No Third Party Beneficiaries. This Agreement, the schedules and exhibits hereto and the documents and instruments and other agreements among the parties hereto referenced herein are not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
 
8.06 Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to persons or circumstances other than those with respect to which it is deemed void will be interpreted so as reasonably to effect the intent of the parties hereto within the boundaries of applicable law. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent practicable within applicable law, the economic, business and other purposes of such void or unenforceable provision.
 
8.07 Other Remedies. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.
 
8.08 Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Mississippi, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
 
8.09 Rules of Construction. The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefor, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
 
8.10 Attorneys' Fees. If any action or other proceeding relating to the enforcement of any provision of this Agreement is brought by any party hereto, the prevailing party shall be entitled to recover reasonable attorneys' fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).
8.11 Shareholder's Post Closing Sale Restrictions. Each shareholder of the Company by submission of its Company Common Stock in exchange for the Parent Common Stock and Warrants agrees that the total shares of common stock of the Parent sold by him/her in any one month period shall not exceed 2.5% of the average monthly trading volume of the Parent Common Stock for the month prior to the date in which sale takes place. Each shareholder of the Company agrees that this Parent Common Stock sales restriction shall apply to any Parent Common Stock, whether owned as a result of the Merger or thereafter acquired for as long as either owns any Parent Common Stock and that this provision shall survive the consummation of the Merger.
IN WITNESS WHEREOF, Parent, Subsidiary, the Company, each of the Principals and the Shareholder Representative have caused this Agreement to be signed, all as of the date first written above.

XFONE, INC.
By:      
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and CEO
I-55 TELECOMMUNICATIONS, L.L.C.
By:      
Name: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and CEO
XFONE USA, INC.
By:      
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
PRINCIPAL
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Individually


 
OFFICE OF THE MISSISSIPPI SECRETARY ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇  (▇▇▇)▇▇▇-▇▇▇▇
Articles of Merger or Share Exchange
Profit Corporation
The undersigned corporation pursuant to Section 79-4-11.05, as amended, hereby executes the following document and sets forth:
 
1. Name of Corporation 1
    I-55 Telecomunications, L.L.C., a Louisiana limited liability co. ("I-55")
2. Name of Corporation 2
    XFone USA, Inc., a Mississippi Corporation
3. Name of Corporation 3
 
4. The future effect date is (complete if applicable)
 
5. The plan of merger or share exchange (Attach page)
 
6. ▇▇▇▇ the appropriate box.
  o  (a) Sholder approval of the plan of merger or share exchange was not required
    or
  x  (b) If approval of the Shareholders of one or more corporations party to the merger or share exchange was requires
        (i) the designation, number of outstanding shares, and number of voyes entitled to be cast by
            Each class entitled to vote seperately on the plan as to each corporation were
 
 Name of Corporation  Designation   No. of outstanding shares No. of votes entitled to be cast 
 ▇-▇▇  ▇▇▇▇▇▇▇▇▇  ▇/▇  100%
 XFone USA, Inc.  Common  100  100
 
Exhibit A-1-
OFFICE OF THE MISSISSIPPI SECRETARY ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇  (▇▇▇)▇▇▇-▇▇▇▇
Articles of Merger or Share Exchange
And Either
 
    a. the total number of votes cast for and asainst the plan by each class entitled to vote seperately on the plan was
 Name of Corporation  Class  Total no. of votes cast FOR the plan Total no. of votes cast AGAINST the plan
 
 
 
OR
 
    b. the total number of undisputed votes cast for the plan seperately by each class was

 Name of Corporation  Class  Total no. of votes cast FOR the plan
 I-55 Interests 100%
 XFone USA, Inc. Common 100
 
and the number of votes cast for the plan was sufficient for approval by that class.
 
Name of Corporation 1
    
    I-55 Telecomunications, L.L.C.
     
 
 		  
 		  
 
  By:   /s/   Signature
 
Printed Name
  Title 
 
Exhibit A-2-
OFFICE OF THE MISSISSIPPI SECRETARY ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇  (▇▇▇)▇▇▇-▇▇▇▇
Articles of Merger or Share Exchange
Name of Corporation 2
    XFone USA, Inc.
     
 
 		  
 		  
 
  By:   /s/   Signature
 
Printed Name
  Title 
 
Name of Corporation 3

              
     
 
 		  
 		  
 
  By:   /s/   Signature
 
Printed Name
  Title 
 
NOTE
1. If shareholder approval is required, the plan must be approved by each voting group entitled to vote on the plan by a majority of all votes to be cast by that voting group unless the Act ot the articles of incorporation provide for a greater or lesser vote, but not less than a majority of all votes cast at a meeting.
 
2. The articles cannot be filed unless the corporation(s) has (have) paid all fees and taxes (and delinquencies) imposed by law.
 
3. The articles must be similarly executed by each corporation that is a party to the merger.
 
Exhibit A-3-
 
Form of Escrow Agreement
ESCROW AGREEMENT
 
This Escrow Agreement, dated as of ____________, 2005 (the "Closing Date"), among I-55 Telecommunications, L.L.C., a Louisiana limited liability company (“I-55” or the “Company”), XFone, Inc., a Nevada corporation, and XFone USA, Inc., a Mississippi corporation (collectively "Buyer"), Ra▇▇▇▇▇ ▇▇▇▇ ▇a▇▇▇ ▇▇▇▇▇▇, an individual resident of Louisiana ("Tricou" or “Principal”) and Trustmark National Bank, a national banking association as escrow agent ("Escrow Agent").
 
This is the Escrow Agreement referred to in the Agreement and Plan of Merger Agreement dated _______________, 2005 (the "Merger Agreement") among Buyer, the Company and the Principal. Capitalized terms used in this agreement without definition shall have the respective meanings given to them in the Merger Agreement.
 
In order to provide Buyer security for certain rights of indemnification that the Buyer possesses under the Merger Agreement in the event of a breach of the representations, warranties or agreements by the Company or the Principal thereunder, or otherwise pursuant to the terms of the Merger Agreement, the Principal and the Buyer have agreed that the number of shares of XFone, Inc. Common Stock (the "XFone Common Stock") and the number of XFone, Inc. Stock Warrants ("XFone Stock Warrants") as set forth in Exhibit "A", which constitutes part of the purchase price under the Merger Agreement, shall be deposited with the Escrow Agent by the Principal and Buyer to be held and handled by Escrow Agent in accordance with the terms and conditions herein set forth.
 
The XFone, Inc. Common Stock is currently traded under the symbol AMEX:XFN and the Buyer shall notify the Escrow Agent of any change in the market on which the stock is listed or the symbol under which it is traded.
 
The parties, intending to be legally bound, hereby agree as follows:
 
1.  ESTABLISHMENT OF ESCROW
 
(a)  Deposit of XFone Common Stock and XFone Stock Warrants. The Principal hereby deposits in escrow the number of shares of XFone Common Stock and XFone Common Stock Warrants set out opposite his names on Exhibit "A" attached to this Agreement ("Escrow Shares"), registered in the name of the Escrow Agent or its nominee.
 
(b)  Escrow Fund. The Escrow Shares, all dividends and distributions thereon, and all income and property resulting therefrom ("Escrow Fund") shall be held by the Escrow Agent for the benefit of the Principal and Buyer on the terms set out herein.
 
(c)  Voting Rights of Shares in Escrow. All voting rights with respect to the XFone Common Stock composing a part of the Escrow Fund may be exercised by the Principal who deposited such XFone Common Stock in escrow, and the Escrow Agent shall from time to time execute and deliver to the Principal such proxies, consents, or other documents as may be necessary to enable the Principal to exercise such rights with respect to any XFone Common Stock deposited by the Principal which remains a part of the Escrow Fund.
 
(d)  Distributions on Escrow Fund. All dividends and other distributions (whether in cash, securities, or other property) paid or made on the Escrow Fund shall be deemed to have been paid or made to the Principal, for income tax purposes, but shall be received by the Escrow Agent and constitute part of the Escrow Fund.
 
Exhibit B-1-
(e)  Taxes and Charges on Escrow Fund. The Principal shall maintain the Escrow Fund free and clear of all liens and encumbrances and shall, promptly upon request by the Escrow Agent, pay and discharge all taxes, assessments, and governmental charges imposed on or with respect to the Escrow Fund.
 
(f)  Acceptance of Escrow. Escrow Agent hereby agrees to act as escrow agent and to hold, safeguard and disburse the Escrow Fund pursuant to the terms and conditions hereof.
 
(g)  Notice of Claim. Buyer shall be entitled to recover under this Escrow Agreement in respect of any Loss (as defined in Section 6.2 of the Merger Agreement) and may give notice in writing in the form attached hereto as Appendix A ("Pending Claims Notice") to the Escrow Agent and the Principal of any claim on which a Loss may be based, which Pending Claims Notice shall include a brief description of the nature of the claim, the identity of the party by whom it is being asserted, and an estimate of the amount of loss that may be sustained by Buyer (the "Estimated Loss").
 
2.  DISTRIBUTIONS FROM ESCROW FUND
 
(a)  Buyer Request. If Buyer (or either of them) submits a notice and request to the Principal and Escrow Agent in substantially the form attached as Appendix B stating that a Loss (as defined in the Merger Agreement) has been determined in accordance with Section 6.2 of the Merger Agreement and specifying the dollar amount of the Loss and the property from the Escrow Fund to be released to the Buyer in satisfaction of the Loss (including specifying the number of shares of the XFone Common Stock and the XFone Stock Warrants to be released to the Buyer or its designee from the Escrow Fund), then on the 15th business day following such notice, Escrow Agent shall release the number of shares of the XFone Common Stock and XFone Stock Warrants as directed in said notice, unless the Escrow Agent has received a Counter-Notice (as defined herein) from the Principal that it disputes the requested release from the Escrow Fund for the Loss.
 
(b)  Request by Principal. If the Principal gives a notice in substantially the form attached as Appendix C to the Escrow Agent and Buyer stating that he is entitled to a distribution from the Escrow Fund as required under Section 6.2(b)(ii) of the Merger Agreement specifying the number of XFone Common Stock and XFone Stock Warrants to be distributed, then on the 15th business day following such notice, the Escrow Agent shall release the XFone Common Stock and XFone Stock Warrants pursuant to the directions given by the Principal in the notice, unless the Escrow Agent shall have received from Buyer a Counter-Notice (as defined herein) that it disputes the requested release from the Escrow Fund requested by the Principal.
 
(c)  If a counter-notice ("Counter-Notice") is given with respect to a request for distributions from the Escrow Fund, then the Escrow Agent shall make a distribution from the Escrow Fund only in accordance with (i) joint written instructions of Buyer and the Principals or (ii) a final non-appealable order of a court of competent jurisdiction. Any court order shall be accompanied by legal opinion by counsel for the presenting party satisfactory to the Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
 
(d)  Notwithstanding anything to the contrary contained in this Agreement, the Escrow Agent shall make distributions from the Escrow Fund in accordance with the joint written instructions of Buyer and Principal.
 
Exhibit B-2-
3.  DURATION AND TERMINATION OF ESCROW
 
(a)  On the third anniversary date of this Agreement, the Escrow Agent shall retain an amount of the Escrow Fund equal to the aggregate dollar value of the Estimated Losses for all outstanding Pending Claims Notices and the remainder of the Escrow Fund shall be disbursed to the Principal. For these purposes, the value of the Parent Common Stock and the Parent Stock Warrants shall be determined in accordance with Exhibit "A."
 
(b)  The Escrow Agreement shall continue in full force and effect until the first to occur of the close of business on the last day during which there is any Escrow Fund remaining with the Escrow Agent or December 31, 2020, at which time this Escrow shall terminate and any Escrow Fund remaining shall be interpled with the registry or custody of any court of competent jurisdiction and thereupon the Escrow Agent shall be discharged of all further duties under this Agreement.
 
4.  DUTIES OF ESCROW AGENT
 
(a)  Escrow Agent shall not be under any duty to give the Escrow Fund held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
 
(b)  Escrow Agent shall not be liable, except for its own gross negligence or willful misconduct and, except with respect to claims based upon such gross negligence or willful misconduct that are successfully asserted against Escrow Agent, the others hereto shall jointly and severally indemnify and hold harmless Escrow Agent (and any successor Escrow Agent) from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys' fees and disbursements, arising out of and in connection with this Agreement.
 
(c)  Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it to be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. Escrow Agent may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct Escrow Agent on behalf of that party unless written notice to the contrary is delivered to Escrow Agent.
 
(d)  Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
 
(e)  Escrow Agent does not have any interest in the Escrow Fund deposited hereunder but is serving as escrow holder only and having only possession thereof. Any payments of income from this Escrow Fund shall be subject to withholding regulations then in force with respect to United States taxes. The parties hereto will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax identification number certification, or non-resident alien certifications. This Section 5(e) and Section 5(b) shall survive notwithstanding any termination of this Agreement or the resignation of Escrow Agent.
 
(f)  Escrow Agent makes no representation as to the validity, value, genuineness or the collectibility of any security or other document or instrument held by or delivered to it.
 
Exhibit B-3-
(g)  Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering the Escrow Fund to any successor Escrow Agent jointly designated by the other parties hereto in writing, or to any court of competent jurisdiction, whereupon Escrow Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of Escrow Agent will take effect on the earlier of (a) the appointment of a successor (including a court of competent jurisdiction) or (b) the day which is 30 days after the date of delivery of its written notice of resignation to the other parties hereto. If at that time Escrow Agent has not received a designation of a successor Escrow Agent, Escrow Agent's sole responsibility after that time shall be to retain and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint written disposition instruction by the other parties hereto or a final non-appealable order of a court of competent jurisdiction.
 
(h)  In the event of any disagreement between the other parties hereto resulting in adverse claims or demands being made in connection with the Escrow Fund or in the event that Escrow Agent is in doubt as to what action it should take hereunder, Escrow Agent shall be entitled to retain the Escrow Fund until Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction directing delivery of the Escrow Fund or (ii) a written agreement executed by the other parties hereto directing delivery of the Escrow Fund, in which event Escrow Agent shall disburse the Escrow Fund in accordance with such order or agreement. Any court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to Escrow Agent to the effect that the order is final and non-appealable. Escrow Agent shall act on such court order and legal opinion without further question.
 
(i)  Buyer and Principal shall pay Escrow Agent compensation (as payment in full) for the services to be rendered by Escrow Agent hereunder in the amount of [$1,000.00] at the time of execution of this Agreement and [$1,000.00] annually thereafter and agree to reimburse Escrow Agent for all reasonable expenses, disbursements and advances incurred or made by Escrow Agent in performance of its duties hereunder (including reasonable fees, expenses and disbursements of its counsel). Any such compensation and reimbursement to which Escrow Agent is entitled shall be borne 50% by Buyer and 50% by the Principal. Any fees or expenses of Escrow Agent or its counsel that are not paid as provided for herein may be taken from any property held by Escrow Agent hereunder.
 
(j)  No printed or other matter in any language (including, without limitation, prospectuses, notices, reports and promotional material) that mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent shall be issued by the other parties hereto or on such parties' behalf unless Escrow Agent shall first have given its specific written consent thereto.
 
5.  LIMITED RESPONSIBILITY
 
This Agreement expressly sets forth all the duties of Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations shall be read into this agreement against Escrow Agent. Escrow Agent shall not be bound by the provisions of any agreement among the other parties hereto except this Agreement.
 
6.  OWNERSHIP FOR TAX PURPOSES
 
Principal agrees that, for purposes of federal and other taxes based on income, the Principal will be treated as the owner of the Escrow Fund and that the Principal will report all income, if any, that is earned on, or derived from, the Escrow Fund as his income in the taxable year or years in which such income is properly includible and pay any taxes attributable thereto.
 
Exhibit B-4-
7.  NOTICES
 
All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier (with written confirmation of receipt) provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a party may designate by notice to the other parties):
 
IF TO COMPANY OR PRINCIPALS, TO:
 
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
I-55 Telecommunications, L.L.C.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (504) ___________
Facsimile: (504) ___________
Email:     
 
IF TO PARENT OR SUBSIDIARY, TO:
 
XFone, Inc.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Email:▇▇▇@▇▇▇▇▇.▇▇▇
 
and
 
XFone USA, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
 
Exhibit B-5-
                           with a copy to:
 
The Oberon Group, LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
 
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Winter & Stennis, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (39202)
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 601-949-4804
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
 
IF TO ESCROW AGENT:
 
Trustmark National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇ (“Sandy”) C▇▇▇▇▇, ▇.▇.
 
8.  JURISDICTION; SERVICE OF PROCESS
 
Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the parties in the courts of the State of Mississippi or, if it has or can acquire jurisdiction, in the United States District Court for the Southern District of Mississippi, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
 
9.  COUNTERPARTS
 
This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original and all of which, when taken together, will be deemed to constitute one and the same.
 
Exhibit B-6-
10.  SECTION HEADINGS
 
The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation.
 
11.  WAIVER
 
The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.
 
12.  EXCLUSIVE AGREEMENT AND MODIFICATION
 
This Agreement supersedes all prior agreements among the parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the Buyer, the Principal and the Escrow Agent.
 
13.  GOVERNING LAW
 
This Agreement shall be governed by the laws of the State of Mississippi, without regard to conflicts of law principles.
 
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.
 

 

Exhibit B-7-
BUYERS:
 
XFone, Inc.
 
By: G▇▇ ▇▇▇▇▇▇▇▇▇, President and CEO
 
XFone USA, Inc.
 
By: W▇▇▇ ▇▇▇▇▇▇▇, President
 

ESCROW AGENT:
 
Trustmark National Bank
 
By:
Title:
PRINCIPAL:

R▇▇▇▇▇▇ ▇▇▇▇ J▇▇▇▇ ▇▇▇▇▇▇, Individually

Exhibit B-8-
EXHIBIT "A"
 
XFone Common Stock XFone Stock Warrants
 
R▇▇▇▇▇▇ ▇▇▇▇ J▇▇▇▇ ▇▇▇▇▇▇ ________ Shares ________ Warrants
 
VALUATION
 
Parent Stock Warrants - $_______ per warrant
 
Parent Common Stock - the average of the closing price for the ten (10) trading days immediately preceding the date of valuation.

 

Exhibit B-9-
APPENDIX A
 
PENDING CLAIM NOTICE
 
To:   __________________________________, or its successor ("Escrow Agent")
R▇▇▇▇▇▇ ▇▇▇▇ J▇▇▇▇ ▇▇▇▇▇▇ ("Principal")
 
From:    XFone, Inc and/or XFone USA, Inc ("XFone")
Date:  _____________________
 
Please be advised that, pursuant to Section 1(g) of the Escrow Agreement dated ____________, 2005 by and among the undersigned, the Escrow Agent, and the Principals, each of you are hereby notified that, Buyer believes that the Buyer has or may suffer a Loss pursuant to the provisions of Article 6.2 of the Merger Agreement dated as of _______________, 2005 ("Merger Agreement") by virtue of
 
 
 
 
XFone estimates that the Loss is $_____________ ("Estimated Loss").
 
Signed this _____ day of _________________, 20__.
 
XFone, Inc./XFone USA, Inc.
 
By: 
Title: 

 

Exhibit B-10-


APPENDIX B
 
BUYER DEPOSITION NOTICE REQUEST
 
To:
  
__________________________________, or its successor ("Escrow Agent")
R▇▇▇▇▇▇ ▇▇▇▇ J▇▇▇▇ ▇▇▇▇▇▇ ("Principal")
 
From:
  
XFone, Inc./XFone USA, Inc. ("XFone")
 
Date:
  
_______________________
 
Re:
  
Escrow Agreement Dated ____________, 2004 Among the Above-referenced Parties ("Escrow Agreement")
 
Please be advised that pursuant to Section 2(a) of the Escrow Agreement you are hereby notified that a Loss (as defined in the Merger Agreement dated ________________, 2005) has been determined and you are hereby instructed to deliver to XFone, Inc. the following XFone Common Stock and XFone Stock Warrants endorsed for transfer to XFone from the Escrow Fund.
 
(1)
_________ shares XFone Common Stock as follows:
 
(2)
_________ shares XFone Stock Warrants as follows:
 
(3)
Cash Dividends $________.
 
Check One:
 
____
This is the Loss as determined for Pending Claims Notice dated.
 
 
____
This notice also constitutes a Pending Claims Notice and the Loss arises out of the following:
 
Sincerely,
 
XFone, Inc./XFone USA, Inc.
 
By: 
Title: 

 

Exhibit B-11-


APPENDIX C
 
PRINCIPALS DEPOSITION NOTICE REQUEST
 
To:
  
______________________, or its successor ("Escrow Agent")
XFone, Inc./XFone USA, Inc. ("XFone")
 
From:
  
R▇▇▇▇▇▇ ▇▇▇▇ J▇▇▇▇ ▇▇▇▇▇▇ ("Principal")
 
Date:
  
_____________________
 
Re:
  
Escrow Agreement Dated ____________, 2004 Among the Above-referenced Parties ("Escrow Agreement")
 
Please be advised that pursuant to Section 2(b) of the Escrow Agreement you are hereby notified that the Principal is entitled to a distribution as set forth below from the Escrow Fund pursuant to Section 6.2(b)(ii) of the Merger Agreement dated ______________, 2005, and you are hereby requested to deliver to the Principal the following XFone Common Stock and Parent Stock Warrants endorsed as follows for transfer from the Escrow Fund:
 
To R▇▇▇▇▇▇ ▇▇▇▇ J▇▇▇▇ ▇▇▇▇▇▇:
 
__________ shares of XFone Common Stock R▇▇▇▇▇▇ ▇▇▇▇ J▇▇▇▇ ▇▇▇▇▇▇ deposited in the Escrow Fund.
 
__________ XFone Stock Warrants from R▇▇▇▇▇▇ ▇▇▇▇ J▇▇▇▇ Tricou’s XFone Stock Warrants deposited in the Escrow Fund.
 
Sincerely,
 
R▇▇▇▇▇▇ ▇▇▇▇ J▇▇▇▇ ▇▇▇▇▇▇
 


 
Form of Management Agreement

MANAGEMENT AGREEMENT
 
THIS MANAGEMENT AGREEMENT is effective as of the ____ day of ___________, 2005 and is by and between I-55 Telecommunications, L.L.C., a Louisiana limited liability company (“I-55 Telecom”) and XFone USA, Inc., a Mississippi corporation ("XFone USA" or "Manager") and Ra▇▇▇▇▇ ▇▇▇▇ ▇a▇▇▇ ▇▇▇▇▇▇ (the "Guarantor") (referred to collectively hereinafter as "the Parties").
 
WITNESSETH:
 
WHEREAS, pursuant to the terms of that certain Agreement and Plan of Merger dated as of _____________, 2005 (the "Merger Agreement") among I-55 Telecom, Guarantor, XFone USA and XFone, Inc. (the "Parent"), I-55 Telecom is to be merged with and into XFone USA (the "Merger") for the Merger Consideration to be paid by Parent (capitalized terms not otherwise defined herein shall have the meaning as set forth in the Merger Agreement); and
 
WHEREAS, certain regulatory approvals are required before the Merger may be consummated and the parties desire that XFone USA provide management services to I-55 Telecom in accordance with the terms of this Agreement pending the consummation of the Merger.
 
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Parties agree as follows:
 
1. Retention of XFone USA. I-55 Telecom does hereby hire and appoint XFone USA as Manager to be responsible for the operation and management of all of I-55 Telecom's business operations (the "Business") and XFone USA hereby accepts such appointment as Manager and shall manage the operations of the Business upon the terms set forth herein. The management services to be performed by Manager under this Agreement shall be performed by Manager as agent for I-55 Telecom and without limiting the foregoing, I-55 Telecom hereby grants the Manager the authority and powers necessary for the management of the Business in the ordinary and usual course of business generally consistent with past practice, including, without limitation, the following:
 
(a) Personnel. Supervising the current employees and independent contractors of I-55 Telecom with the Manager having the authority to hire, discharge and direct such personnel for the conduct of the Business.
 

Exhibit C-1-

(b) Accounting. Supervision and administration of all accounting and the maintenance of all books and records for the Business, including, without limitation, (i) all billing, communications and other services provided to customers serviced under I-55 Telecom's licenses; (ii) collection on behalf of I-55 Telecom of all fees, charges and other compensation relating to the Business; (iii) review of all bills received for services, work or supplies in connection with maintaining and operating the Business and paying all such bills as and when the same shall become due and payable except for the Long Term Liabilities (as defined in the Merger Agreement); and (iv) preparation on a monthly basis of a balance sheet and income and expense statement with respect to the Business.
 
(c) Contracts. Maintain all existing contracts necessary for the operation of the Business and the authority to enter into or renew contracts in I-55 Telecom's name as necessary for the continuing operation of the Business provided that the consent of I-55 Telecom shall be required for any new contracts or renewals of existing contracts that are not terminable on 60 days notice, or that require the commitment of more than $5,000.00, which is not included in an approved operating budget.
 
(d) Policies/Procedures. Preparation of all policies and procedures for the operation of the Business.
 
(e) Budgets. Preparation of all operating, capital or other budgets which shall be prepared and submitted on a schedule to be approved by the Parties.
 
2. Assignment of Revenues and Payment of Expenses.
 
(a) For and in consideration of the management services to be provided hereunder, I-55 Telecom hereby assigns and transfers to Manager all revenues generated from the operations of the Business (the "Revenues"), to be used in accordance with this Agreement and Manager agrees to pay and cause to be paid from the Revenues the normal operating, maintenance, administrative, and similar expenses of the Business incurred in the ordinary course of business during the term hereof, exclusive of the Long Term Liabilities (as defined in the Merger Agreement) ("Expenses").
 
(b) I-55 Telecom shall designate the Manager as the controlling party of the current operating accounts of the Business (the "Accounts") and all funds collected from the operations, fees, sales and other collections and operations of the Business shall be deposited in the Accounts and the Manager shall control and have authority with respect to all disbursements from said Accounts and the Manager agrees that the normal operating expenses shall be paid from the Revenues collected and deposited in such Accounts and then to the extent of available funds, the Long Term Liabilities and other non-recurring liabilities shall be paid.
 

Exhibit C-2-

3. Loans by Manager. The Manager, in its discretion, shall have the right to make advances or loans (the "Manager Loans") to I-55 Telecom payable on demand (or if no demand payable in equal quarterly installments of principal and interest) for an amount up to [$500,000.00,] with interest at [7%] per annum from the date advanced until paid for the payment of any amounts due during the term of this Management Agreement under any of the Long Term Liabilities (as defined in the Merger Agreement) or for any other liabilities the Manager deems appropriate for which there are not sufficient Revenues generated to pay such debts and expenses. I-55 Telecom, by execution of this Agreement, grants to the Manager a security interest in all of the assets, whether now owned or hereafter acquired and wherever located, of I-55 Telecom, including without limitation, all accounts, goods, equipment, inventory, contracts and contract rights, instruments, chattel paper, securities and other investment property. The Manager is hereby authorized to file such financing statements and amendments thereto and continuations thereof in such offices as necessary to perfect the security interest granted hereby.
 
The Guarantor, by execution hereof, unconditionally guarantees the prompt payment as and when due whether at maturity or by acceleration or otherwise of the Manager Loans, together with any and all interest or other amounts due with respect to the Manager Loans and any renewals, extensions or amendments of the Manager Loans. The obligation of the Guarantor hereunder shall constitute a present and continuing guaranty of payment and not of collectibility only, shall be absolute and unconditional, shall not be subject to any counterclaim, setoff, deduction or defense Guarantor may at any time have against Manager or any other person, and shall remain in full force and effect without regard to any event whatsoever (whether or not Guarantor shall have any knowledge or notice thereof or shall have consented thereto), including without limitation: (1) any extensions, renewals or changes in form of this Agreement or any other documents evidencing the Manager Loan (the "Manager Loan Documents"), as the same may be amended and/or supplemented from time to time, any assignment or transfer of any part thereof, any renewals or extension of the terms of payment under any of the Manager Loan Documents or the granting of time in respect of the payment thereof, or any furnishing or acceptance of security or any release of any security so furnished or accepted in connection with any of the Manager Loan Documents; (2) any waiver, consent, extension, forbearance or other action or inaction under or in respect of this Guaranty or the Manager Loan Documents, or any exercise of or failure to exercise any right, remedy or power in respect hereof or thereof; (3) any failure, neglect or omission of Manager to protect, in any manner, the collection of the Manager Loans, or any portion thereof, or any security given therefor; (4) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to I-55 Telecom; or (5) any default by I-55 Telecom, Guarantor or party to any of the Manager Loan Documents, or the invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, any of the Manager Loan Documents.
 

Exhibit C-3-

4. Terms. The term of this Agreement shall commence on the date hereof and shall continue until the consummation of the Merger, provided that this Agreement may be terminated by either party at any time after ______________, 2006 upon 30 days prior notice.
 
5. Termination Fee. In the event that the Agreement is terminated by either party as provided in Paragraph 4 (other than due to the consummation of the Merger), then the Parties agree that the "Net Revenue" or "Net Loss" during the term of this Agreement shall be divided 50% to I-55 Telecom and 50% to the Manager, provided that in the event the Manager or any of its affiliates has made any Manager Loans to I-55 Telecom, that the Manager may offset against any amounts due under any Manager Loans any amounts due to I-55 Telecom for the "Net Revenue" and in the event there is a "Net Loss", then I-55 Telecom's share of the "Net Loss" shall be added to the principal due under the Manager Loans. If this Agreement is terminated due to the consummation of the Merger, then in such event the Manager shall be entitled to all the Net Revenues or Net Losses. For purposes of this section "Net Revenue" is the excess of gross revenues derived from the Business during the Term, over expenses paid and losses incurred during the Term, and "Net Loss" is the excess of expenses paid and losses incurred during the Term, over gross revenues derived from the Business during the Term.
 
6. Insurance. I-55 Telecom shall include the Manager as an additional insured on all insurance currently maintained and such insurance shall continue throughout the term of this Management Agreement.
 
7. Independent Contractor. It is the expressed intent of I-55 Telecom, on the one hand, and Manager, on the other hand, that neither a partnership, joint venture, nor employment relationship is created between the Parties by this Agreement; rather, it is the express intent of the Parties that this Agreement represents an independent contractor relationship under which I-55 Telecom is retaining the services of Manager.
 
8. Force Majeure. The obligations of the Parties hereto shall be excused during such time as, and to the extent that, performance is prevented by any occurrence or act beyond their respective control and not due to their fault or negligence, including, without limitation, action of the elements, riots, fire, terrorism, war, acts of God, and any ruling, ordinance, law or regulation of any local, state or federal governmental body having jurisdiction over either party.
 
9. Compliance with Law. Each of the Parties shall comply in all material respects with all applicable laws and regulations. Manager and I-55 Telecom shall immediately notify the other of any pending or threatened action by the FCC, PSC or any other Governmental Authority or third party to suspend, revoke, terminate, or challenge the licenses, or otherwise investigate the licenses of I-55 Telecom. I-55 Telecom shall cooperate with Manager to assist Manager in fulfilling Manager's obligations under the terms of this Agreement.
 

Exhibit C-4-

10. Modifications. This Agreement constitutes the entire understanding and agreement between the Parties and it may not be altered or amended in any way whatsoever except in writing and signed by all of the Parties hereto.
 
11. Confidentiality. During the term of this Agreement, each party will have access to certain confidential information of the other party, including but not limited to trade secrets, financial data and projections, data regarding suppliers and customers operations methods and practices, and marketing and sales approaches (the "Confidential Information"). Each party acknowledges that all Confidential Information which may be disclosed to it by the other party or which may come to the attention of such party (or its agents) in connection with the provision of services under this Agreement is confidential. Accordingly, each party agrees not to disclose such Confidential Information (or suffer its agents to disclose such Confidential Information) unless required to do so by law or unless such party has first obtained the prior written consent of the other party. Each party further agrees not to use such Confidential Information (or suffer its agents to use such Confidential Information) in any manner except in connection with the performance of the services described in this Agreement. Each party further agrees to take reasonable steps necessary to insure that no disclosure or use prohibited by this paragraph is made, including, without limitation, those steps, which a reasonable person would take to protect his own information, data or other tangible or intangible property, which he regards as proprietary or confidential. Upon breach of this paragraph, the non-breaching party shall be entitled to injunctive relief, either pending litigation or permanently or both, against the breaching party, since the Parties acknowledge that a remedy at law would be inadequate and insufficient. In addition, the non-breaching party shall be entitled to recover such damages as it may demonstrate as sustained by reason of such breach. Nothing contained herein or in any other provision of this Agreement shall be construed as limiting a party's remedies under this paragraph in any manner.
 
12. Delegation and Assignment. Except as expressly provided herein, no party shall delegate its duties or assign its rights hereunder in whole or in part, without the prior written consent of the other.
 
13. Notices. All notices required to be given hereunder shall be in writing and shall be deemed given if delivered in person, transmitted by electronic facsimile, or deposited in United States first class mail, postage prepaid, certified or registered mail, return receipt requested, addressed to the Parties as set forth opposite their respective names below. Notice shall be deemed given on the date it is personally delivered, on the date it is transmitted by electronic facsimile, or on the date it is deposited in the mail, as indicated by the United States postmark thereon, in accordance with the foregoing. Any party may change the address or facsimile number at which to send notices by notifying the other party of such change of address or facsimile number in writing in accordance with the foregoing.
 

Exhibit C-5-

14. Further Assurances. Each of the Parties hereto shall execute and deliver all documents, papers and instruments necessary or convenient to carry out the terms of this Agreement.
 
15. Entire Agreement. The Parties acknowledge and agree that this document, together with all other documents expressly referred to herein, constitutes the entire agreement between the Parties. Except as set forth in such other documents (including the exhibits and schedules thereto and ancillary agreements referenced therein), no representatives, promises, conditions or warranties with reference to the execution of this document have been made or entered into between the Parties hereto.
 
16. Waiver of Provisions. Any waiver of any term and condition hereof must be in writing and signed by the party giving the waiver. A waiver of any of the terms and conditions hereof shall not be construed as a waiver of any other terms and conditions hereof.
 
17. Captions. Any captions to or headings of the articles, sections, subsections, paragraphs or subparagraphs of this Agreement are solely for the convenience of the Parties, are not a part of this Agreement, and shall not be used for the interpretation or determination of validity of this Agreement or any provision hereof.
 
18. Severability. The invalidation of any clause or provision of this Agreement shall have no effect on the remaining provisions of this Agreement, and as such, the remaining Agreement shall remain in full force and effect, and be interpreted as consistently as possible.
 
19. Authority. The Parties hereto represent and warrant that all necessary corporate action required to approve and authorize the execution of this Agreement has been accomplished and that this Agreement is a legally binding obligation of the Parties.
 
20. Counterparts/Facsimile Delivery. This Agreement and any subsequent amendments may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. This Agreement and any subsequent amendments may be signed and delivered by facsimile transmission, which delivery shall have the same binding effect as delivery of the document containing the original signature. At the request of any party, any document delivered by facsimile signature shall be followed by or re-executed by all Parties in an original form, provided that the failure of any party to do so will not invalidate the signature delivered by facsimile transmission.
 
21. Mississippi Law. This Agreement shall be governed by the laws of the state of Mississippi.
 

Exhibit C-6-

IN WITNESS WHEREOF, the Parties have executed this Agreement effective the day and year first above written.
 Xfone USA, Inc.
      
/s/ Gu▇ ▇▇▇▇▇▇▇▇▇     /s/ Ra▇▇▇▇▇ ▇▇▇▇                                                  /s/Ja▇▇▇ ▇▇▇▇▇▇
   
Gu▇ ▇▇▇▇▇▇▇▇▇
▇resident
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
                 ▇▇▇ ▇▇▇▇ ▇▇▇▇
                 ▇▇▇▇▇▇, ▇▇▇▇▇▇
                ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇@▇▇▇▇▇.▇▇▇
with copy to:
 
The Oberon Group, LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Ad▇▇ ▇▇▇▇▇▇▇▇▇▇
▇acsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
 
and
 
Wa▇▇▇▇▇ ▇u▇▇▇▇ ▇inter & Stennis, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (39202)
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Gi▇▇ ▇. ▇▇▇▇▇▇
▇elephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 601-949-4804
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
I-55 Telecommunications, L.L.C.
    
       ▇▇▇▇▇▇▇ ▇▇▇▇                                                       ▇▇▇▇▇ ▇▇▇▇▇▇
 
▇▇▇ ▇▇▇▇▇▇▇, ▇▇   
Telephone: 504-___-____
Facsimile: 504-___-____
Email:    
     
Exhibit C-7-
 
FORM OF RELEASE
RELEASE
 
This Release (this "Release") is entered into by the undersigned officers and directors of the Company (as defined herein) (the "Officers and Directors"), effective as of the _____ day of _______________, 2005 in connection with the Transaction contemplated by the terms and provisions of that certain Agreement and Plan of Merger dated August ___, 2005 (the "Merger Agreement") I-55 Telecommunications, L.L.C., a Louisiana limited liability company (the "Company"), XFone, Inc., a Nevada corporation (the "Parent"), XFone USA, Inc., a Mississippi corporation (the "Subsidiary") and ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
 
WHEREAS, execution of this Release by each of the Officers and Directors of the Company is a condition precedent to the Closing of the Merger contemplated by the Agreement and Plan of Merger and as such is a material inducement to the Parent and the Subsidiary in order for them to enter into the Merger; and
 
WHEREAS, the Parent and the Subsidiary would not have closed the Merger without the execution of this Release by each and everyone of the undersigned Officers and Directors; and
 
WHEREAS, each Officer and Director has agreed to execute this Release.
 
NOW, THEREFORE, as additional consideration for the Merger and the covenants, representations, agreements and undertakings contained herein and other good and valuable consideration, the receipt and sufficiency of all of which is hereby acknowledged and intending to be legally bound, the undersigned parties do hereby severally agree as follows:
 
1.  Recitals. Each of the above referenced recitals is true and correct and incorporated into this Release by this reference.
 
2.  Merger Agreement. Each of the undersigned hereby acknowledges receipt of a copy of the Merger Agreement and any amendments thereto. In the event of a conflict between the terms of this Release and the terms of the Merger Agreement, the terms and provisions of this Release shall govern. All capitalized terms which are not otherwise defined in this Release shall have the respective meaning ascribed to such terms in the Merger Agreement.
 
3.  Release by Each Officer and Director. Each Officer and Director hereby severally releases and forever discharges the Company, and each of its respective officers, directors, partners, shareholders, members, employees and all of their successors and assigns (collectively, " Releasees") of and from any and all claims, causes or rights of action, demands and damages of every kind and nature which such Officer or Director may now have, whether known or unknown, anticipated or unanticipated and whether accrued or hereafter to accrue, against Releasees, caused by or arising out of or in any way related to the following: (i) the business, affairs, actions or omissions of the Company and/or the Officers or Directors or any other employee or independent contractor of the Company through the date of Closing under the Merger Agreement; (ii) such Officer's or Director's direct or beneficial ownership or interests in the Company, if any; (iii) such Officer's or Director's status as an Officer or Director or shareholder of the Company; (iv) any action or omission by any of the Officers or Directors of the Company, or any other employees or independent contractors of the Company through the date of Closing under the Merger Agreement; (v) any claims of such Officer or Director arising out of or relating in any manner to any prior business relationship or service of or with respect to the Company through the date of Closing under the Merger Agreement, and (vi) any and all agreements, events or occurrences by, between or among any Officer or Director and/or the Company prior to Closing or relating in any manner to this Merger, including, without limitation, any tax analysis with respect to the transactions contemplated by the Merger Agreement.
 
Exhibit D-1-
4.  Compromise. Each Officer and Director agrees that this settlement is a compromise of doubtful and disputed claims through the date of Closing under the Merger Agreement, and that the agreement to pay the consideration recited herein is not to be construed as an admission of any liability whatsoever by Releasees and that Releasees expressly deny any such liability.
 
5.  Scope of Release. Each Officer and Director agrees that the consideration for this release was paid to secure full, complete, and final discharge of Releasees from any and all claims, demands, actions, or causes of action that any of the undersigned Officers or Directors of the Company may have against the Releasees as of the date hereof with respect to matters hereby released as set forth in paragraph 3 hereof, and each of the Officers or Directors of the Company hereby agree that such claims, demands, actions, or causes of action are wholly and forever satisfied and extinguished.
 
6.  Covenant Not to ▇▇▇. Each Officer and Director will forever refrain and desist from instituting, prosecuting, or asserting against Releasees, or any of them, any further claim, demand, action, cause of action or suit of any kind or nature, either directly or indirectly, on account of matters hereby releases as set forth in paragraph 3 hereof.
 
7.  No Prior Assignment. Each Officer and Director specifically acknowledges, covenants, represents and warrants that there has been no assignment of any right or claim released hereby and that each Officer and Director will, severally, as with respect to actions by any such Officer and Director defend and hold harmless Releasees with respect to any matters hereby released.
 
8.  Authority. Each Officer and Director represents and warrants that each are fully competent and authorized to execute this Release, and that upon execution this Release will be valid and binding upon each of them. Each Officer and Director represents and warrants that the undersigned constitute all of the Directors and Officers of the Company. Releasees represent and warrant that they are fully competent and authorized to execute this Release, and that upon execution this Release will be valid and binding upon each of them.
 
9.  Acknowledgment. Each Officer and Director represents and warrants that the terms of this Release have been read, voluntarily accepted, understood by each such Officer and Director or explained to each such Officer and Director by its attorney(s), and agreed to and approved by its attorney(s). Each Officer and Director further represents and warrants that it has relied upon its own judgment, knowledge and belief as to the nature and extent of any damages which may have been suffered or sustained, or may be sustained in the future, with regard to the items released hereby under paragraph 3 hereof.
 
10.  Entire Agreement. This Release constitutes the entire agreement between the parties with respect to the releases contemplated hereby. All prior to or contemporaneous agreements, understandings, representations, warranties and statements, oral or written are hereby superceded. Any alterations or additions shall be effective only if reduced to writing, dated and signed by the party against whom the enforcement thereof is or may be sought.
 
11.  Waiver. No waiver of a breach of any of the terms, covenants or conditions of this Release by any party shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, covenant or condition herein contained. No waiver of any default by any party hereunder shall be implied from any omissions by either party to take any action on account of such default. If such default persists or is repeated, and no express waiver shall affect a default other than as specified in such waiver.
 
12.  Severability. If any term, provision, covenant or condition of this Release is held to be invalid, void or otherwise unenforceable to any extent by any court of competent jurisdiction, the remainder of this Release shall not be affected thereby, and each term, provision, covenant or condition of this Release shall be valid and enforceable to the fullest extent permitted by law.
 
Exhibit D-2-
13.  Successors. Subject to the restriction on assignment provided herein, all terms of this Release shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective heirs, legal representatives, successors and assigns.
 
14.  Assignment. No party hereto shall assign their respective rights, obligations or interest under this Release in any manner.
 
15.  Headings. The captions and paragraph headings used in this Release are inserted for convenience of reference only and are not intended to define, limit or affect the interpretation or construction of any term or provision hereof.
 
16.  Counterparts. This Release may be executed in multiple copies, each of which shall be deemed an original, but all of which shall constitute one Agreement binding on all parties.
 
17.  Facsimile Signatures. In order to expedite the Merger contemplated herein, telecopied signatures may be used in place of original signatures on this Release. All parties hereto intend to be bound by the signatures on the telecopied document, are aware that other parties will rely on the telecopied signatures, and hereby waive any and all defenses to the enforcement of the terms of this Release based on the form of signature.
 
18.  Governing Law. This Release shall be governed, construed and enforced in accordance with the laws of the State of Louisiana.
 
19.  Effective Date. The terms and provisions of this Release shall be effective upon Closing of the Transaction contemplated by the Merger Agreement.
 
IN WITNESS WHEREOF, each Officer and Director set forth below has executed this Release as of the Effective Date.
 
DIRECTORS:
OFFICERS:
 
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, President
 
 
 
 


Exhibit D-3-
 
Restricted Area
 
Louisiana

Acadia Parish, ▇▇▇▇▇ ▇▇▇▇▇▇, Ascension Parish, Assumption Parish, Avoyelles Parish, ▇▇▇▇▇▇▇▇▇▇ Parish, Bienville Parish, Bossier Parish, Caddo Parish, Calcasieu Parish, ▇▇▇▇▇▇▇▇ Parish, Cameron Parish, Catahoula Parish, Claiborne Parish, Concordia Parish, De Soto Parish, East Baton Rouge Parish, East ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, East ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, Iberia Parish, Iberville Parish, ▇▇▇▇▇▇▇ Parish, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Parish, La Salle Parish, Lafayette Parish, Lafourche Parish, Lincoln Parish, ▇▇▇▇▇▇▇▇▇▇ Parish, Madison Parish, ▇▇▇▇▇▇▇▇▇ Parish, Natchitoches Parish, Orleans Parish, Ouachita Parish, Plaquemines Parish, Pointe Coupee Parish, Rapides Parish, Red River Parish, Richland Parish, ▇▇▇▇▇▇ ▇▇▇▇▇▇, St. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, St. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, St. ▇▇▇▇▇▇ ▇▇▇▇▇▇, St. ▇▇▇▇▇ ▇▇▇▇▇▇, St. ▇▇▇▇ the Baptist Parish, St. Landry Parish, St. ▇▇▇▇▇▇ ▇▇▇▇▇▇, St. ▇▇▇▇ ▇▇▇▇▇▇, St. Tammany Parish, Tangipahoa Parish, Tensas Parish, Terrebonne Parish, Union Parish, Vermilion Parish, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Washington Parish, Webster Parish, West Baton Rouge Parish, West ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, West ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇

Mississippi

▇▇▇▇▇ County, ▇▇▇▇▇▇ County, Amite County, Attala County, ▇▇▇▇▇▇ County, Bolivar County, ▇▇▇▇▇▇▇ County, ▇▇▇▇▇▇▇ County, Chickasaw County, Choctaw County, Claiborne County, ▇▇▇▇▇▇ County, Clay County, Coahoma County, Copiah County, ▇▇▇▇▇▇▇▇▇ County, DeSoto County, ▇▇▇▇▇▇▇ County, Franklin County, ▇▇▇▇▇▇ County, ▇▇▇▇▇▇ County, Grenada County, ▇▇▇▇▇▇▇ County, ▇▇▇▇▇▇▇▇ County, ▇▇▇▇▇ County, ▇▇▇▇▇▇ County, ▇▇▇▇▇▇▇▇▇ County, Issaquena County, Itawamba County, ▇▇▇▇▇▇▇ County, Jasper County, Jefferson County, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ County, ▇▇▇▇▇ County, ▇▇▇▇▇▇ County, Lafayette County, ▇▇▇▇▇ County, Lauderdale County, ▇▇▇▇▇▇▇▇ County, ▇▇▇▇▇ County, ▇▇▇ County, ▇▇▇▇▇▇▇ County, Lincoln County, Lowndes County, Madison County, ▇▇▇▇▇▇ County, ▇▇▇▇▇▇▇▇ County, Monroe County, ▇▇▇▇▇▇▇▇▇▇ County, Neshoba County, ▇▇▇▇▇▇ County, Noxubee County, Oktibbeha County, Panola County, Pearl River County, Perry County, Pike County, Pontotoc County, ▇▇▇▇▇▇▇▇ County, Quitman County, ▇▇▇▇▇▇ County, ▇▇▇▇▇ County, ▇▇▇▇▇▇▇ County, ▇▇▇▇▇▇▇ County, ▇▇▇▇▇ County, Stone County, Sunflower County, Tallahatchie County, ▇▇▇▇ County, Tippah County, Tishomingo County, Tunica County, Union County, ▇▇▇▇▇▇▇▇ County, ▇▇▇▇▇▇ County, Washington County, ▇▇▇▇▇ County, ▇▇▇▇▇▇▇ County, ▇▇▇▇▇▇▇▇▇ County, Winston County, Yalobusha County, Yazoo County

Exhibit E-1-

Document Metadata

Filed: August 31st, 2005