XASE:NTS Quarterly Report 10-Q Filing - 6/30/2012

Effective Date 6/30/2012

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 10-Q
 
þ
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the quarterly period ended June 30, 2012
 
o
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the transition period from ____________ to ____________
 
Commission file number: 001-32521
 
NTS, INC.
(Exact name of registrant as specified in its charter)
 
Nevada
 
11-3618510
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)
 
5307 W. Loop 289
Lubbock, Texas 79414
(Address of principal executive offices)
 
806-771-5212
(Registrant’s telephone number, including area code)
 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No o
 
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes þ No o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer
o
Accelerated filer
o
Non-accelerated filer
o
Smaller reporting company
þ
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No þ
 
As of August 12, 2012, 41,186,596 shares of the Company’s common stock, $0.001 par value, were issued and outstanding.
 


 
 

 
 
NTS, INC. AND SUBSIDIARIES
 
Index
 
     
Page
 
PART I:
FINANCIAL INFORMATION
     
         
Item 1.
Condensed Consolidated Financial Statements and Notes (Unaudited) - Period Ended June 30, 2012
   
3
 
Item 2.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
   
23
 
Item 3.
Quantitative and Qualitative Disclosures about Market Risk
   
30
 
Item 4.
Controls and Procedures
   
30
 
           
PART II:
OTHER INFORMATION
       
           
Item 1.
Legal Proceedings
   
31
 
Item 1A.
Risk Factors
   
32
 
Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds
   
32
 
Item 3.
Defaults upon Senior Securities
   
32
 
Item 4.
Mine Safety Disclosures.
   
32
 
Item 5.
Other Information
   
32
 
Item 6.
Exhibits
   
33
 
           
SIGNATURES
   
41
 
 
 
2

 
 
PART I:
 
FINANCIAL INFORMATION
 
ITEM 1.
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AND NOTES (UNAUDITED) - PERIOD ENDED JUNE 30, 2012
 
NTS, Inc. and Subsidiaries
 
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
 
June 30, 2012
 
 
3

 
 
CONTENTS
 
PAGE
 
       
Condensed Consolidated Balance Sheets as of June 30, 2012 (unaudited) and December 31, 2011
    5  
         
Condensed Consolidated Statements of Operations for the three and six months ended June 30, 2012 and 2011 (unaudited)
    7  
         
Condensed Consolidated Statements of Cash Flows for the six months ended June 30, 2012 and 2011 (unaudited)
    8  
         
Notes to Condensed Consolidated Financial Statements (unaudited)
    10  
 
 
4

 
 
NTS, Inc. and Subsidiaries
CONDENSED CONSOLIDATED BALANCE SHEETS
 
   
June 30,
   
December 31,
 
   
2012
   
2011
 
   
(unaudited)
       
             
CURRENT ASSETS:
           
Cash
  $ 7,662,701     $ 6,563,514  
Accounts receivable, net
    4,227,839       3,762,250  
Prepaid expenses and other receivables
    2,759,557       2,577,357  
Deferred taxes
    720,767       583,990  
Inventory
    190,495       193,077  
                 
Total current assets
    15,561,359       13,680,188  
                 
BONDS ISSUANCE COSTS, NET
    998,537       1,143,227  
                 
OTHER LONG-TERM ASSETS
    2,791,015       2,769,232  
                 
RESTRICTED CASH
    1,121,932       769,331  
                 
FIXED ASSETS, NET
    78,894,699       71,250,071  
                 
INTANGIBLE ASSETS, NET
    1,653,020       1,915,555  
                 
Total assets
  $ 101,020,562     $ 91,527,604  
 
The accompanying notes are an integral part of these condensed consolidated financial statements.

 
5

 
 
NTS, Inc. and Subsidiaries
CONDENSED CONSOLIDATED BALANCE SHEETS
 
 
June 30,
   
December 31,
 
 
2012
   
2011
 
 
(unaudited)
         
             
CURRENT LIABILITIES:
               
Short-term bank credit and current maturities of notes payable
 
$
2,428,652
   
$
1,766,289
 
Trade payables
   
8,684,054
     
6,690,440
 
Other liabilities and accrued expenses
   
4,236,389
     
4,621,863
 
Current maturities of obligations under capital leases
   
469,599
     
475,162
 
Current maturities of bonds
   
3,760,858
     
3,723,127
 
                 
Total current liabilities
   
19,579,552
     
17,276,881
 
                 
DEFERRED TAXES, NET
   
2,374,863
     
2,524,071
 
                 
NOTES PAYABLE TO THE UNITED STATES DEPARTMENT OF AGRICULTURE, NET OF CURRENT MATURITIES
   
29,570,874
     
21,380,045
 
                 
NOTES PAYABLE, NET OF CURRENT MATURITIES
   
10,809,228
     
11,307,638
 
                 
BONDS PAYABLES, NET OF CURRENT MATURITIES
   
10,811,096
     
10,902,992
 
                 
OBLIGATIONS UNDER CAPITAL LEASES, NET OF CURRENT MATURITIES
   
351,118
     
395,847
 
                 
OTHER LONG-TERM LIABILITIES
   
43,515
     
72,704
 
                 
Total liabilities
   
73,540,246
     
63,860,178
 
                 
COMMITMENTS AND CONTINGENT LIABILITIES
               
 
SHAREHOLDERS' EQUITY:
               
Common stock of $0.001 par value per share: 150,000,000 shares authorized; 41,186,596 issued and outstanding at June 30, 2012 and December 31, 2011
   
41,187
     
41,187
 
Additional paid-in capital
   
54,465,605
     
54,386,459
 
Foreign currency translation adjustment
   
(1,805,791
)
   
(1,805,791
)
Retained earnings (deficit)
   
(25,220,685
)
   
(24,954,429
)
                 
Total Equity
   
27,480,316
     
27,667,426
 
                 
Total liabilities and shareholders' equity
 
$
101,020,562
   
$
91,527,604
 
 
The accompanying notes are an integral part of these condensed consolidated financial statements.

 
6

 
 
NTS, Inc. and Subsidiaries
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
   
Three months ended
   
Six months ended
 
   
June 30,
   
June 30,
 
   
2012
   
2011
   
2012
   
2011
 
Revenues
                       
Services on Fiber-To-The-Premise network
 
$
4,513,105
   
$
3,041,161
   
$
8,585,772
   
$
5,986,561
 
Leased local loop services and other
   
10,571,454
     
11,057,995
     
21,422,616
     
22,369,813
 
Total Revenues
   
15,084,559
     
14,099,156
     
30,008,388
     
28,356,374
 
                                 
Expenses
                               
Cost of services (excluding depreciation and amortization shown below)
   
6,820,276
     
6,849,829
     
13,942,930
     
13,861,304
 
Selling, general and administrative
   
5,436,522
     
5,210,519
     
10,573,283
     
10,527,967
 
Depreciation and amortization
   
1,452,468
     
1,227,181
     
2,986,441
     
2,396,463
 
Financing expenses, net
   
1,119,237
     
1,728,264
     
2,560,936
     
3,252,694
 
Other expenses
   
179,207
     
143,114
     
377,876
     
289,846
 
Total Expenses
   
15,007,710
     
15,158,907
     
30,441,466
     
30,328,274
 
                                 
Income (loss) before taxes
   
76,849
     
(1,059,751
)
   
(433,078
)
   
(1,971,900
)
                                 
Income tax benefit (expense)
   
(4,104
)
   
241,984
     
166,822
     
520,519
 
                                 
Net income (loss)
 
$
72,745
   
$
(817,767
)
 
$
(266,256
)
 
$
(1,451,381
)
                                 
Basic and diluted income (loss) per share
 
$
0.00
 
$
(0.04
)
 
$
(0.01
)
 
$
(0.07
)
                                 
Basic and diluted weighted average number of shares outstanding
   
41,186,596
     
21,119,488
     
41,186,596
     
21,119,488
 
 
* represents amount less than $0.01.
 
The accompanying notes are an integral part of these condensed consolidated financial statements.

 
7

 
 
NTS, Inc. and Subsidiaries
 
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
 
(Unaudited)
 
             
   
Six months ended
 
   
June 30,
 
   
2012
   
2011
 
Cash flow from operating activities:
           
Net loss
 
$
(266,256
)
 
$
(1,451,381
)
Adjustments required to reconcile net income to net cash provided by operating activities:
               
Depreciation and amortization
   
2,986,441
     
2,396,463
 
Compensation  in connection with the issuance of warrants and options issued for professional services
   
79,146
     
141,627
 
Increase (decrease) in bad debt provision
   
228,184
     
245,798
 
Accrued interest and exchange rate on bonds
   
(151,274
)
   
1,278,342
 
Unearned Loss due to hedging
   
97,109
     
-
 
Expense of discounted debt from related party and related warrants
   
237,454
     
393,432
 
Gain on the disposal of fixed assets
   
-
     
(5,000
)
Decrease (increase) in bonds issuance cost, net
   
144,690
     
144,690
 
Decrease (increase) in account receivables
   
(693,773
)
   
(1,859,615
)
Decrease (increase) in inventories
   
2,582
     
(49,771
)
Decrease (increase) in long-term receivables
   
(21,783
)
   
(24,161
)
Decrease (increase) in prepaid expenses and other receivables
   
(182,200
)
   
586,775
 
Increase ( decrease) in other long-term liabilities
   
(29,189
)
   
(43,223
)
Increase (decrease) in trade payables
   
(459,354
)
   
1,695,438
 
Increase (decrease) in other liabilities and accrued expenses
   
(385,474
)
   
(951,474
)
Deferred tax provision
   
(285,985
)
   
(636,721
)
                 
Net cash  provided by  operating activities
   
1,300,318
     
1,861,219
 
                 
Cash flow from investing activities:
               
Proceeds from disposal of fixed assets
   
-
     
5,000
 
Purchase of equipment
   
(1,178,723
)
   
(1,367,003
)
Purchase of equipment for the projects under the United States Department of Agriculture, net of grants
        received
   
(6,491,382
)
   
(2,825,992
)
                 
 Net cash used in investing activities
   
(7,670,105
)
   
(4,187,995
)

The accompanying notes are an integral part of these condensed consolidated financial statements.
 
 
8

 
 
NTS, Inc. and Subsidiaries
 
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)
 
(Unaudited)
 
         
 
Six months ended
 
 
June 30,
 
 
2012
 
2011
 
Cash flow from financing activities:
               
Repayment of short-term loans from banks and others
   
(3,946,730
)
   
(538,204
)
Proceeds from long-term loans
   
3,500,000
     
-
 
Repayment of capital lease obligation
   
(295,753
)
   
(580,425
)
Proceeds from long-term loans from the United States Department of Agriculture
   
9,249,827
     
10,956,751
 
Repayment of long term loans from United States Department of Agriculture
   
(685,769
)
   
(275,290
)
Decrease (increase) in restricted cash
   
(352,601
)
   
(6,600,845
)
                 
Net cash provided by financing activities
   
7,468,974
     
2,961,987
 
                 
Net increase (decrease) in cash and cash equivalents
   
1,099,187
     
635,211
 
                 
Cash and cash equivalents at the beginning of the period
   
6,563,514
     
1,217,427
 
                 
Cash and cash equivalents at the end of period
 
$
7,662,701
   
$
1,852,638
 
                 
Supplemental disclosure of cash flows activities:
       
             
Cash paid for:
           
             
Interest
 
$
1,693,105
   
$
1,304,864
 
                 
Taxes
 
$
166,000
   
$
150,000
 
                 
Purchase of fixed assets by capital lease arrangements
 
$
245,461
   
$
170,806
 
                 
Purchase of fixed assets included in accounts payable
 
$
2,452,968
   
$
1,733,942
 
 
The accompanying notes are an integral part of these condensed consolidated financial statements

 
9

 

NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)
 
Note 1 - Organization and Nature of Business

 
A.
NTS, Inc. (“NTSI” or “the Company”) was incorporated in the State of Nevada, U.S.A. in September 2000 under the name Xfone, Inc. The Company is a holding and managing company providing, through its subsidiaries, integrated communications services which include voice, video and data over its Fiber-To-The-Premise (“FTTP”) and other networks. The Company currently has operations in Texas, Mississippi and Louisiana. Effective as of February 1, 2012, the Company changed its name to “NTS, Inc.” and as of February 2, 2012 the Company's common shares began trading on the NYSE MKT (f/k/a NYSE Amex) and the Tel Aviv Stock Exchange ("TASE") under a new ticker symbol “NTS”. The name change is a reflection of the Company's refined and enhanced business strategy which began with its acquisition of NTS Communications, Inc. (“NTSC”) in 2008 and its focus on the build out of its high-speed FTTP network.

NTSI’s wholly owned subsidiaries as of June 30, 2012 were as follows:

 
NTSC and its seven wholly owned subsidiaries, NTS Construction Company, Garey M. Wallace Company, Inc., Midcom of Arizona, Inc., Communications Brokers Inc., NTS Telephone Company, LLC, NTS Management Company, LLC and PRIDE Network, Inc.
 
Xfone USA, Inc. and its two wholly owned subsidiaries, eXpeTel Communications, Inc. and Gulf Coast Utilities, Inc. (collectively, “Xfone USA”).
 
 
B.
Purchase assets and liabilities of CoBridge Telecom, LLC.

On April 25, 2011, NTSC entered into an Asset Purchase Agreement (the “Agreement”) with CoBridge Telecom, LLC, (“CoBridge”), pursuant to which CoBridge agreed to sell NTSC all of CoBridge’s assets in and around the communities of Colorado City, Levelland, Littlefield, Morton, and Slaton Texas pursuant to the terms of the Agreement. CoBridge provided cable television service in those communities via coaxial cable facilities and the transaction will allow the Company to quickly expand in those markets while reducing sales and marketing costs to obtain new customers. As part of the transaction, NTSC also agreed to assume certain contracts of CoBridge which are necessary to continue operation of the assets that were acquired. The sale and purchase closed on July 1, 2011, but the purchase price was adjusted during November 2011 based on the number of CoBridge’s customers who failed to pay their accounts or canceled service (offset by customers who converted to NTSC’s service in relevant markets). On July 24, 2012, NTSC and CoBridge agreed on the final purchase price of $962,970 and cost of $39,187 in connection with the provision of transition services to NTSC.

The Company acquired these assets to accelerate its penetration in these markets. The remaining required disclosures are considered immaterial.

The following table summarizes the fair values of the assets acquired:

Fixed assets
 
$
108,079
 
Customer relationship
   
766,491
 
         
Net assets acquired
 
$
874,570
 
         
Purchase price:
       
Cash paid
 
 $
306,030
 
Note payable
   
568,540
 
Total
 
$
874,570
 

 
10

 
 
NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)

Note 1 - Organization and Nature of Business (cont.)

 
C.
Purchase assets and liabilities of Reach Broadband

On September 16, 2011, NTSC entered into an Asset Purchase Agreement (the “Agreement”) with RB3, LLC, and Arklaoktex, LLC, each doing business as Reach Broadband (“Reach”), pursuant to which Reach agreed to sell NTSC all of Reach’s assets in and around the communities of Abernathy, Anton, Brownfield, Hale Center, Idalou, Levelland, Littlefield, Meadow, New Deal, O’Donnell, Olton, Reese, Ropesville, Shallowater, Smyer, Tahoka, and Wolfforth Texas pursuant to the terms of the Agreement. Reach provided those communities with cable television service via coaxial cable facilities and Internet service via a wireless network. The sale and purchase closed on December 1, 2011, but is subject to a purchase price adjustment based on the number of Reach’s customers who failed to pay their accounts or canceled service (offset by customers who converted to NTSC’s service in relevant markets). The Company has not yet agreed on the final purchase price with Reach.

The Company acquired these assets to accelerate its penetration in these markets. The remaining required disclosures are considered immaterial.

The following table summarizes the fair values of the assets acquired:

Fixed assets
 
$
112,521
 
Customer relationship
   
566,184
 
         
Net assets acquired
 
$
678,705
 
         
Purchase price:
       
Cash paid
  $
203,612
 
Note payable
   
475,093
 
Total
 
$
678,705
 

 
D.
Liquidity

As of June 30, 2012, the Company reported a working capital deficit of $4,018,193 compared to a working capital deficit of $3,596,693 on December 31, 2011. On June 22, 2012 the Company entered into Amendment No. 1 to the Original ICON Agreement providing for an additional loan in the amount of $3,500,000 (“Term Loan”) and a second loan in the amount of $3,100,000 (“Delayed Draw Term Loan”). The Company used the proceeds of the Term Loan solely for the payment and satisfaction in full of all liabilities owed to Burlingame Equity Investors LP, including but not limited to the Burlingame Note. The Company will use the proceeds of the Delayed Draw Term Loan solely for the purchase of equipment in connection with the Company's project to construct a fiber network in Wichita Falls, upon the request made by the Company prior to September 25, 2012. The Company believes that increased revenues from the higher margin Fiber-To-The-Premise network will result in increased profitability and cash flows, which will lead to improvement in the working capital deficit to meet its anticipated cash requirements for at least the next 12 months. If, however, the Company does not generate sufficient cash from operations, or if the Company incurs additional unanticipated liabilities or the Company is unable to renew and/or extend a portion of its short-term liabilities, the Company may be required to seek additional financing or sell equity or debt on terms which may not be as favorable as it could have otherwise obtained. No assurance can be given that any refinancing, additional borrowing or sale of equity or debt will be possible when needed or that the Company will be able to negotiate acceptable terms. In addition, the Company’s access to capital is affected by prevailing conditions in the financial and equity capital markets, as well as the Company’s own financial condition. While management believes that the Company will be able to meet its liquidity needs for at least the next 12 months, no assurance can be given that the Company will be able to do so.

 
11

 
 
NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)
 
Note 2 - Significant Accounting Policies

The condensed consolidated financial statements are prepared in accordance with generally accepted accounting principles in the United States. The significant accounting policies followed in the preparation of the financial statements, applied on a consistent basis, are as follows:
 
 
A.
Principles of Consolidation and Basis of Financial Statement Presentation

The condensed consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America ("US GAAP") and include the accounts of the Company and its subsidiaries. All significant inter-company balances and transactions have been eliminated in consolidation. Minority interest in the loss of a subsidiary will be recorded according to the respective equity interest of the minority and up to its exposure and/or legal obligation to cover the subsidiary losses in the event that equity is reduced to zero or below.

The condensed consolidated financial statements included herein have been prepared by the Company, without audit, pursuant to the rules and regulations of the US Securities and Exchange Commission. Certain information, including note disclosures, normally included in financial statements which are prepared in accordance with US GAAP has been condensed or omitted pursuant to such rules and regulations, although the Company believes that the disclosures included are adequate to make the information presented not misleading.

In management’s opinion, the condensed consolidated balance sheet as of June 30, 2012 (unaudited) and December 31, 2011 (audited), the unaudited condensed consolidated statements of operations for the six months ended June 30, 2012 and 2011, and the unaudited condensed consolidated statements of cash flows for the six months ended June 30, 2012 and 2011, contained herein, reflect all adjustments, consisting solely of normal recurring items, which are necessary for the fair presentation of the Company's financial position, results of operations and cash flows on a basis consistent with that of the Company's prior audited consolidated financial statements. However, the results of operations for the interim periods may not be indicative of results to be expected for the full fiscal year. Therefore these financial statements should be read in conjunction with the audited financial statements and notes thereto and summary of significant accounting policies included in the Company’s Form 10-K for the year ended December 31, 2011.

The Company has evaluated subsequent events occurring through the date on which this Quarterly Report on Form 10-Q was filed.

 
B.
Foreign Currency Translation

Foreign currency transactions gains and losses are included in the results of operations.

 
C.
Cash and Cash Equivalents

Cash and cash equivalents consist of cash and temporary investments with maturities of three months or less when purchased.

 
12

 
 
NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)
 
Note 2 - Significant Accounting Policies (cont.)

 
D.
Restricted Cash

Restricted cash includes proceeds held by PRIDE Network, Inc. that were received from the United States Department of Agriculture to develop its FTTP infrastructure in northwestern Texas and southern Louisiana.
 
 
E.
Accounts Receivable

Accounts receivable are recorded at net realizable value consisting of the carrying amount less the allowance for uncollectible accounts.

The Company uses the allowance method to account for uncollectible accounts receivable balances. Under the allowance method, estimate of uncollectible customer balances is made using factors such as the credit quality of the customer and the economic conditions in the market. An allowance for doubtful accounts is determined with respect to those amounts that the Company has determined to be doubtful of collection. When an account balance is past due and attempts have been made to collect the receivable through legal or other means the amount is considered uncollectible and is written off against the allowance balance.

Accounts receivable are presented net of an allowance for doubtful accounts of $1,034,057 and $805,873 at June 30, 2012 and December 31, 2011, respectively.

 
F.
Other Intangible Assets

Other intangible assets consist of a license to provide communication services in the US.

Customer relations related to mergers and acquisitions are amortized over a period between 2-13 years from the date of the purchase.

 
G.
Earnings Per Share

Basic earning per share (EPS) is computed by dividing income available to common shareholders by the weighted average number of common shares outstanding for the period. Diluted EPS reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock or resulted in the issuance of common stock that then shared in the earnings of the entity. Warrants and options were excluded from the calculation of diluted loss per share since they would have an anti-dilutive effect due to the Company's loss from continued operations and net loss to shareholders which were reported for the six months ended June 30, 2012 and 2011.
 
 
H.
Stock-Based Compensation
 
The Company accounts for stock-based compensation in accordance with FASB ASC No. 718-10, "Compensation - Stock Compensation".  Stock-based compensation expense recognized during the period is based on the value of the portion of share-based awards that are ultimately expected to vest during the period. The fair value of each stock option grant is estimated on the date of grant using the Black-Scholes option pricing model. The fair value of restricted stock is determined based on the number of shares granted and the closing price of the Company’s common stock on the date of grant. Compensation expense for all share-based payment awards is recognized using the straight-line amortization method over the vesting period.
 
 
13

 
 
NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)
 
Note 2 - Significant Accounting Policies (cont.)

 
I.
Reclassification
 
Certain prior period balances in the statement of cash flows have been reclassified to conform to the current year presentation. Such reclassifications did not impact the Company's net income or stockholders' equity.
  
 
J.
Income Taxes
 
The Company and its subsidiaries account for income taxes in accordance with FASB ASC No. 740, “Income Taxes.” This topic prescribes the use of the liability method, whereby deferred tax asset and liability account balances are determined based on differences between financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates that will be in effect when the differences are expected to reverse. The Company and its subsidiaries provide a valuation allowance, if necessary, to reduce deferred tax assets to their estimated realizable value.

Deferred tax liabilities and assets are classified as current or non-current based on the classification of the related asset or liability for financial reporting, or according to the expected reversal dates of the specific temporary differences if not related to an asset or liability for financial reporting.

The Company uses a two-step approach for recognizing and measuring tax benefits taken or expected to be taken in a tax return. The first step is recognition: the Company determines whether it is more likely than not that a tax position will be sustained upon examination, including resolution of any related appeals or litigation processes, based on the technical merits of the position. In evaluating whether a tax position has met the more-likely-than-not recognition threshold, the Company presumes that the position will be examined by the appropriate taxing authority that has full knowledge of all relevant information. The second step is measurement: a tax position that meets the more-likely-than-not recognition threshold is measured to determine the amount of benefit to recognize in the financial statements. The tax position is measured at the largest amount of benefit that is greater than 50 percent likely of being realized upon ultimate settlement. Differences between tax positions taken in a tax return and amounts recognized in the financial statements will generally result in one or more of the following: an increase in a liability for income taxes payable, a reduction of an income tax refund receivable, a reduction in a deferred tax asset, or an increase in a deferred tax liability.
 
 
14

 

NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)
 
Note 2 - Significant Accounting Policies (cont.)

 
K.
Derivative Instruments
 
The Company and its subsidiaries account for derivative instruments and hedging activities in accordance with FASB ASC No. 815, "Derivatives and Hedging". ASC 815 requires entities to provide qualitative disclosures about the objectives and strategies for using derivatives, quantitative data about the fair value of any gains and losses on derivative contracts, and details of credit risk related contingent features in their hedged positions. ASC 815 also requires entities to disclose more information about the location and amounts of derivative instruments in financial statements; how derivatives and related hedges are accounted for; and how the hedges affect the entity's financial position, financial performance, and cash flows.
 
The Company recognizes all of its derivative instruments as either assets or liabilities on the balance sheet at fair value. For derivative instruments that are designated and qualify as a cash flows hedge (i.e., hedging the exposure to variability in expected future cash flows that is attributable to a particular risk), the effective portion of the gain or loss on the derivative instrument is reported as a component of other comprehensive income and reclassified into earnings in the same period or periods during which the hedged transaction affects earnings. Any gain or loss on a derivative instrument in excess of the cumulative change in the present value of future cash flows of the hedged item is recognized in current earnings during the period of change. For the period ended June 30, 2012, our forward contracts did not qualify for hedge accounting and as such, changes in the fair value of the derivative instrument were reported in current period earnings. During January 2012, the Company entered into two foreign currency hedging transactions of $596,842 maturing on May 29, 2012 to buy NIS 2,303,809 and $4,306,570 maturing on November 28, 2012 to buy NIS 16,640,591 in order to hedge against the risk of principal and interest payments of its bonds during 2012. The Company hedged its forecasted principal and interest payments denominated in NIS with currency forwards contracts. As of June 30, 2012, the Company recognized an unearned loss of $97,109 in financing expenses in the Condensed Consolidated Statements of Operations against a reduction in its Current maturities of Bonds in the Condensed Consolidated Balance Sheet.

 
L.
Recent Accounting Pronouncements
 
1.
Comprehensive Income (Topic 220). In June 2011, the Financial Accounting Standards Board (FASB) issued “Comprehensive Income (Topic 220) - Presentation of Comprehensive Income (Accounting Standards Update (ASU) 2011-05) which eliminates the presentation of the components of Other Comprehensive Income as part of the statement of changes in stockholders’ equity. The new standard requires an entity to report comprehensive income either in a single continuous financial statement or in two separate but consecutive financial statements. In both choices, an entity is required to present each component of net income along with total net income, each component of other comprehensive income along with a total for other comprehensive income, and a total amount for comprehensive income. The amendments in this ASU 2011-05 are applied retrospectively. For public entities, the amendments are effective for fiscal years, and interim periods within those years, beginning after December 15, 2011. In December 2011, FASB issued ASU 2011-12, “Comprehensive Income (Topic 220) – Deferral of the effective date for amendments to the presentation of reclassification of items out of Accumulated Other Comprehensive Income in ASU No 2011-05” to delay the proposed identification of reclassification adjustments in the consolidated statements of income. The Company does not anticipate adoption will have a material impact on the financial statements.
   
2.
Balance Sheet (Topic 210). In December 2011, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) 2011-11 “Balance Sheet (Topic 210) – Disclosures about Offsetting Assets and Liabilities which require an entity to disclose information about offsetting and related arrangements to enable users of its financial statements to understand the effect of those arrangements on its financial position. The ASU is effective for annual reporting periods beginning on or after January 1, 2013, with interim   periods therein, and is to be implemented retrospectively.
 
 
15

 

NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)

Note 3 – Notes payable

1.
On October 6, 2011, the Company entered into a term loan, guarantee and security agreement (the “Original ICON Agreement”) between the following: (1) ICON Agent, LLC, acting as agent for the Lenders signatory thereto; (2) the Company, as Guarantor; (3) Xfone USA, Inc., NTS Communications, Inc., Gulf Coast Utilities, Inc., eXpeTel Communications, Inc., NTS Construction Company, Garey M. Wallace Company, Inc., Midcom of Arizona, Inc., Communications Brokers, Inc., and NTS Management Company, LLC, acting as Borrowers and Guarantors; and (4) PRIDE Network, Inc., and NTS Telephone Company, LLC (together with the Borrowers and Guarantors acting as Credit Parties).
 
On June 22, 2012 the Company entered into Amendment No. 1 to the Original ICON Agreement providing for:

(i)
An additional Term Loan in the amount of $3,500,000, for the payment of all liabilities owed to Burlingame,
 
(ii)
A Delayed Draw Term Loan in the amount of $3,100,000, for the purchase of equipment in connection with the Company's project to construct a fiber network in Wichita Falls, upon the request made by the Company prior to September 25, 2012 and
 
(iii)
Certain other amendments to the Original ICON Loan as described in Amendment No. 1.
 
As per the Amendment No. 1, the principal amount of the term loan (a “Closing Date Term Loan”) of $7,500,000 bearing interest of 12.75% per annum is payable in 68 consecutive monthly installments with the first 20 monthly payments being payments of accrued interest only. The principal amount of the term loan (an “Amendment Date Term Loan”) of $3,500,000 bearing interest of 12.75% per annum is payable in 60 consecutive monthly installments with the first 12 monthly payments being payments of accrued interest only. The loans are secured by a lien against all of each Borrower's and Guarantor's property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest; such as all accounts, all deposit accounts, all other bank accounts and all funds on deposit therein; all money, cash and cash equivalents, all investment property, all stock (other than the publicly traded shares of Stock issued by NTSI), all goods (including inventory, equipment and fixtures), all chattel paper, documents and instruments, all Books and Records, all general intangibles (including all Intellectual Property, contract rights, choses in action, payment intangibles and software), all letter-of-credit rights, all commercial tort claims, all FCC Licenses, all supporting obligations provided, however, that none of the assets of PRIDE Network, Inc. and NTS Telephone Company, LLC are being used as collateral for the Loan and are specifically excluded. The fundings of the Closing Date Term Loan and Amendment Date Term Loan were made on October 27, 2011 and June 22, 2012 respectively.
 
On August 9, 2012, the Company entered into Amendment No. 2 to the Original ICON Agreement providing for revised amortization schedules of the Closing Date Term Loan and the Amendment Date Term Loan.
 
The Company has to maintain a Fixed Charge Coverage Ratio of not less than 1.15 to 1.00 for the trailing four fiscal quarter period most recently ended if at any time cash is less than $3,000,000 as of the last day of any fiscal quarter. Pursuant to Amendment No. 1, Senior Leverage Ratio should not exceed 2.00 to 1.00 from June 30, 2012 through March 31, 2013, 1.75 to 1.00 from June 30, 2013 through December 31, 2013 and 1.50 to 1.00 from March 31, 2014 and thereafter.
 
The total outstanding amount of the loans as of June 30, 2012 is $11,000,000. As of June 30, 2012, there was no outstanding amount on the Delayed Draw Term Loan.
 
 
16

 
 
NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)

Note 3 - Notes payable (Cont.)

2.
NTS Telephone Company, LLC, a wholly owned subsidiary of NTSC, received approval from the Rural Utilities Service (“RUS”), a division of the United States Department of Agriculture, for an $11.8 million debt facility to complete a telecommunications overbuild project in Levelland, Texas. The principal of the RUS loan is repaid monthly starting one year from the advance date until full repayment after 17 years from each advance date. The loan bears interest at the average yield on outstanding marketable obligations of the United States having the final maturity comparable to the final maturity of the advance. Advances are provided as the construction progresses, and the interest rate is set based upon the prevailing rate at the time of each individual advance. The loan is non-recourse to NTSC and all other NTSC subsidiaries and is secured by NTS Telephone's assets which were $13.7 million at June 30, 2012. As of June 30, 2012, the current average weighted interest rate on the outstanding advances was 3.54%.
 
The total outstanding amount of these loans as of June 30, 2012 and December 31, 2011 are $9,953,550 and $10,312,900, respectively. The loans are to be repaid in monthly installments until 2024.

3.
PRIDE Network, Inc., a wholly owned subsidiary of NTSC, received approval from the Broadband Initiative Program of the American Recovery and Reinvestment Act, for a total $99.9 million funding in the form of $45.9 million in grants and $54 million in 19 to 20 year loans. The loans bear interest at the US Treasury rate for comparable loans with comparable maturities. The funding will allow the Company to develop its FTTP infrastructure, known as the PRIDE Network in northwestern Texas and further expand it to communities in southern Louisiana. Construction work of PRIDE Network's FTTP infrastructure started in October 2010. The total aggregate amount of these loans and grants as of June 30, 2012 is $21,049,460 and $17,107,108, respectively. The loans are non-recourse to NTSC and all other NTSC subsidiaries and are secured by PRIDE Network's assets which were $25.7 million at June 30, 2012. As of June 30, 2012, the current average weighted interest rate on the outstanding advances was 3.24%. As of June 30, 2012, the total amount of loan and grant available in the future is $32,525,916 and $28,769,813, respectively.
   
4.
On March 23, 2010, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with an existing shareholder, Burlingame. As part of the Purchase Agreement, the Company issued a senior promissory note in the aggregate principal amount of $3,500,000, with a maturity date of March 22, 2012. Interest accrued at an annual rate of 10% and was payable quarterly. The note was not secured and had equal liquidation rights with the Company's Series A Bonds issued in Israel on December 13, 2007. The Company evaluated the fair value of each of the three securities that were issued under the Purchase Agreement (i.e., the promissory note, 2,173,913 shares of the Company’s common stock, and a warrant to purchase 950,000 shares of the Company’s common stock) and recorded the promissory note at its fair value of $2,556,240. The difference between the fair value and the principal amount was expensed ratably over the life of the promissory note.
 
On May 2, 2011, the Company entered into a First Amendment to the Promissory Note, pursuant to which the Company and Burlingame agreed to extend the maturity date of the Promissory Note from March 22, 2012 to March 22, 2013.
 
The effective interest rate of the Promissory Note was calculated at 22.1%. The total amount of discount recognized for the six months period ended June 30, 2012 was $252,796. The outstanding principal amount of the Promissory Note of $3,500,000 (plus accrued interest) was paid off on June 22, 2012.
   
5.
On April 25, 2011, NTSC entered into an Asset Purchase Agreement (the “Agreement”) with CoBridge Telecom, LLC, (“CoBridge”), pursuant to which CoBridge agreed to sell NTSC all of CoBridge’s assets in and around the communities of Colorado City, Levelland, Littlefield, Morton, and Slaton Texas pursuant to the terms of the Agreement. The note was issued on July 1, 2011 and is payable in 36 equal monthly installments. The total outstanding amount of the note as of June 30, 2012 is $403,229.

 
17

 

NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)

Note 3 - Notes payable (Cont.)

6.
On September 16, 2011, NTSC entered into an Asset Purchase Agreement (the “Agreement”) with RB3, LLC, and Arklaoktex, LLC, each doing business as Reach Broadband (“Reach”), pursuant to which Reach agreed to sell NTSC all of Reach’s assets in and around the communities of Abernathy, Anton, Brownfield, Hale Center, Idalou, Levelland, Littlefield, Meadow, New Deal, O’Donnell, Olton, Reese, Ropesville, Shallowater, Smyer, Tahoka, and Wolfforth Texas pursuant to the terms of the Agreement. The note was issued on December 1, 2011 and is payable in 36 equal monthly installments. The total outstanding amount of the note as of June 30, 2012 is $402,514.

Note 4- Bonds payable

On December 13, 2007, the Company issued a total of NIS 100,382,100 (approximately $25,562,032, based on the exchange rate as of December 13, 2007) unsecured Series A Bonds (the “Bonds”) to Israeli institutional investors. The principal of the Bonds is repaid in 8 equal annual payments on the 1st of December of every year from 2008 until 2015 (inclusive). On November 11, 2008 (the “Date of Listing”), the Bonds commenced trading on the TASE. From the date of issuance until the Date of Listing, the Bonds accrued annual interest at a rate of 9%. As of the Date of Listing, the interest rate for the unpaid balance of the Bonds was reduced by 1% to an annual interest rate of 8%. The interest on the Bonds is paid semi-annually on the 1st of June and on the 1st of December of every year from 2008 until 2015 (inclusive). The principal and interest of the Bonds are linked to the Israeli Consumer Price Index ("CPI"). The known CPI at June 30, 2012 was 117.4.

The components of the bonds payable are as follows:
 
   
June 30, 2012
 
Outstanding balance (in NIS)
    50,191,050  
Accrued Interest (in NIS)
    319,023  
Increase in debt due to CPI adjustments (in NIS)
    7,922,959  
Unearned loss due to hedging (in NIS)
    380,959  
Total outstanding debt (in NIS)
    58,813,991  
         
Exchange rate
    3.923  
         
Total outstanding debt (USD)
  $ 14,992,096  
Debt discount related to warrants
    (420,142 )
         
Total outstanding debt
    14,571,954  
         
Less current portion
    3,760,858  
         
Long-term portion
  $ 10,811,096  
 
 
18

 
 
NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)

Note 4- Bonds payable (Cont.)

The Company issued the holders of the Bonds, for no additional consideration, 956,020 (non-tradable) Warrants, each exercisable at an exercise price of $3.50 with a term of 4 years, beginning on September 2, 2008. In November 2011, following the completion of a rights offering, the exercise price of these warrants was adjusted to $2.04 per share.
 
The Company attributed the composition of the proceeds from the Bonds offering as follows:

Bonds Series A
 
$
24,588,726
 
Stock Purchase Warrants (1)
   
973,306
 
Total
 
$
25,562,032
 

(1)
Presented as part of Additional Paid-in Capital.

The resulting debt discount and bonds issuance costs are being amortized into interest expense over the life of the Bonds.

Note 5 – Capital Structure

On June 13, 2012, the Company granted, under and subject to the Company's 2007 Stock Incentive Plan, to one of NTSC's senior employees options to purchase 791,212 shares of common stock (the "Options"). The Options are exercisable at $1.10 per share and expire seven years from the date of grant. On the date of grant, 197,803 of the Options were fully vested and the remaining 593,409 of the Options shall vest in equal installments over a period of ten quarters with the first quarterly installment vesting on June 30, 2013. The Options are also subject to certain provisions which shall apply in the event of termination of employment. In the event of a change of control of the Company or the sale of most of its assets, any unvested and outstanding portion of the Options shall immediately and fully vest.

Note 6 – Amendments to Articles of Incorporation

On December 29, 2011, the Company’s shareholders approved an amendment (the “Amendment”) to the Company’s Articles of Incorporation (the “Articles”) to change the name of the Company to “NTS, Inc.” and to increase the Company's authorized capital to 150,000,000 shares of common stock $0.001 par value per share. The Amendment became effective on February 1, 2012. The Company filed a Certificate of Amendment to the Articles with the Nevada Secretary of State on January 25, 2012.

 
19

 

NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)


Note 7 – Subsequent events

Buy-back plan

The Board of Directors of the Company adopted a buy-back plan (the “Plan”), effective as of February 13, 2012, according to which the Company may, from time to time, repurchase its Bonds which are traded on the TASE.

Under the Plan the Company is authorized to repurchase Bonds for up to a total amount of NIS 5 million (approximately USD 1.35 million) in transactions on the TASE or outside the TASE, until December 31, 2012. Any repurchases of the Bonds will be financed from the Company’s internal sources, as available from time to time. The Board of Directors has authorized the Company’s management (“Management”) to manage the performance of repurchases according to the Plan, including the conduct of negotiations, at such times, scopes, prices and other terms as Management deems fit. The timing, amounts and terms of any Bonds repurchased by the Company will be determined, at the discretion of Management, based on market conditions and opportunities, economic advisability and other customary criteria and factors.

Repurchases of the Bonds may be carried out by the Company and/or its subsidiaries, either directly and/or through a third party. Bonds repurchased by the Company itself will be canceled and removed from trading on the TASE and will not be permitted to be reissued. The Board of Directors' resolution is not a commitment to repurchase any Bonds under the Plan. The Plan may be suspended or discontinued by the Company at any time.

On July 4, 2012, NTSC, our wholly-owned subsidiary, purchased pursuant to the Plan, in a single transaction outside the TASE, NIS 1,339,310 in par value of Bonds at an aggregate purchase price of NIS 1,091,538 (approximately $278,596). Pursuant to the indenture governing the Bonds, any Bonds purchased by a subsidiary of the Company (as opposed to Bonds repurchased by the Company itself) are not canceled or removed from trading on the TASE.

Series A Bonds Rating

As of August 6, 2012, the Bonds are rated Ba1 with a stable outlook by Midroog Limited, an Israeli rating company which is a subsidiary of Moody’s Investor Services.
 
 
20

 

NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)

Note 8 – Legal proceedings

1. Eliezer Tzur et al. vs. 012 Telecom Ltd. et al.
 
On January 19, 2010, Eliezer Tzur et al. (the “Petitioners”) filed a request to approve a claim as a class action (the “Class Action Request”) against Xfone 018 Ltd. (“Xfone 018”), our former 69% Israel-based subsidiary, and four other Israeli telecom companies, all of which are entities unrelated to us (collectively with Xfone 018, the “Defendants”), in the District Court in Petach Tikva, Israel (the “Israeli Court”).  The Petitioners’ claim alleges that the Defendants have not fully fulfilled their alleged legal requirement to bear the cost of telephone calls by customers to the Defendants’ respective technical support centers. One of the Petitioners, Mr. Eli Sharvit (“Mr. Sharvit”), seeks damages from Xfone 018 for the cost such telephone calls allegedly made by him during the 5.5-year period preceding the filing of the Class Action Request, which he assessed at NIS 54.45 (approximately $14). The Class Action Request, to the extent it pertains to Xfone 018, states total damages of NIS 7,500,000 (approximately $1,911,802) which reflects the Petitioners’ estimation of damages caused to all customers that (pursuant to the Class Action Request) allegedly called Xfone 018’s technical support number during a certain period defined in the Class Action Request.

On February 22, 2011, Xfone 018 and Mr. Sharvit entered into a settlement agreement, which following the instructions of the Israeli Court was supplemented on May 3, 2011 and amended on July 18, 2011 and on March 21, 2012 (the “Settlement Agreement”). Pursuant to the Settlement Agreement, Xfone 018 agreed to compensate its current and past registered customers of international calling services (the “Services”) who called its telephone service center from July 4, 2004 until February 21, 2010, due to a problem in the Services, and were charged for such calls (the “Compensation”). The Compensation includes a right for a single, up to ten minutes, free of charge, international call to one landline destination around the world, and shall be valid for a period of six months. In addition, Xfone 018 agreed to pay Mr. Sharvit a one-time special reward in the amount of NIS 10,000 (approximately $2,549) (the “Reward”). Xfone 018 further agreed to pay Mr. Sharvit attorneys' fee for professional services in the amount of NIS 40,000 (approximately $10,196) plus VAT (the “Attorneys Fee”). In return, Mr. Sharvit and the members of the Represented Group (as defined in the Settlement Agreement) agreed to waive any and all claims in connection with the Class Action Request. As required by Israeli law in such cases, the Settlement Agreement is subject to the approval of the Israeli Court. On April 30, 2012, the Israeli Court appointed a CPA as an examiner to review and assess the Settlement Agreement (the “Examiner”). The Examiner was instructed to advise the Israeli Court whether in his opinion the Settlement Agreement is reasonable. The Examiner has not yet finalized his review and assessment.

On May 14, 2010, the Company entered into an agreement (including any amendment and supplement thereto, the “Agreement”) with Marathon Telecom Ltd. for the sale of our majority (69%) holdings in Xfone 018. Pursuant to Section 10 of the Agreement, we are fully and exclusively liable for any and all amounts, payments or expenses incurred by Xfone 018 as a result of the Class Action Request. Section 10 of the Agreement provides that we shall bear any and all expenses or financial costs which are entailed by conducting the defense on behalf of Xfone 018 and/or the financial results thereof, including pursuant to a judgment or settlement (it was agreed that in the event that Xfone 018 will be obligated to provide services at a reduced price, we shall bear only the cost of such services). Section 10 of the Agreement further provides that the defense by Xfone 018 shall be performed in full cooperation with us and with mutual assistance. It is agreed between us and Xfone 018 that subject to and upon the approval of the Settlement Agreement by the Israeli Court, we shall bear and/or pay: (i) the costs of the Compensation; (ii) the Reward; (iii) the Attorneys Fee; and (iv) Xfone 018 attorneys' fees for professional services in connection with the Class Action Request, estimated at approximately NIS 75,000 (approximately $19,118).

In the event the Settlement Agreement is not approved by the Israeli Court, Xfone 018 intends to vigorously defend the Class Action Request.

 
21

 
 
NTS, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 2012
(Unaudited)


Note 8 – Legal proceedings (Cont.)

2. Danny Jay & Stephanie Tollison vs. NTS Communications, Inc.
 
On December 20, 2010, our wholly-owned subsidiary, NTS Communications, Inc. ("NTSC"), received a demand letter from Danny J. and Stephanie Tollison (the “Petitioners”) claiming $3 million in damages stemming from the search of Mr. Tollison’s home and his wife’s business by the FBI.  The Petitioners alleged that the search was effected because of incorrect information provided by NTSC to the FBI pursuant to a subpoena. The investigation was dropped when the FBI was unable to find what they were looking for and identified another suspect.

On July 19, 2011, the Petitioners filed suit in 350th District Court of Taylor County, Texas seeking $5 million in economic and non-economic damages and asserting breach of contract, negligence, gross negligence, defamation, libel, invasion of privacy, and intentional infliction of emotional distress claims. NTSC has responded by filing a denial of all claims and a request to remove the case to the United States District Court for the Northern District of Texas on the basis that it involves a question of federal law. The request was denied and jury trial before the state court was scheduled for April 2013. NTSC’s insurance carrier has agreed to defend the suit and has referred the matter to counsel. NTSC anticipates that its insurance carrier will cover all costs and damages without any liability to NTSC.
 
 
22

 
 
Item 2.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
 
FORWARD-LOOKING STATEMENTS

 The information set forth in this Management's Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) contains certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation Reform Act of 1995, including, among others (i) expected changes in NTS, Inc.'s (referred to herein as the "Company", or "NTSI", "we", "our", "ours" and "us") revenues and profitability, (ii) prospective business opportunities and (iii) our strategy for financing our business. Forward-looking statements are statements other than historical information or statements of current condition. Some forward-looking statements may be identified by use of terms such as “believes”, “anticipates”, “intends” or “expects”. These forward-looking statements relate to our plans, objectives and expectations for future operations. Although we believe that our expectations with respect to the forward-looking statements are based upon reasonable assumptions within the bounds of our knowledge of our business and operations, in light of the risks and uncertainties inherent in all future projections, the inclusion of forward-looking statements in this Quarterly Report should not be regarded as a representation by us or any other person that our objectives or plans will be achieved.
 
You should read the following discussion and analysis in conjunction with the Condensed Consolidated Financial Statements and Notes attached hereto, and the other financial data appearing elsewhere in this Quarterly Report.

Our revenues and results of operations could differ materially from those projected in the forward-looking statements as a result of numerous factors, including, but not limited to, the following: the risk of significant natural disaster, the inability of the Company to insure against certain risks, inflationary and deflationary conditions and cycles, currency exchange rates, and changing government regulations domestically and internationally affecting our businesses.

US Dollars are denoted herein by “USD”, New Israeli Shekels are denoted herein by “NIS”, and the UK Pound Sterling is denoted herein by “GBP”.

OVERVIEW

NTS, Inc. (“NTSI”) was incorporated in the State of Nevada, U.S.A. in September 2000 under the name Xfone, Inc. We are a holding and managing company providing, through our subsidiaries, integrated communications services which include voice, video and data over our Fiber-To-The-Premise (“FTTP”) and other networks. We currently have operations in Texas, Mississippi and Louisiana. Effective as of February 1, 2012, the Company changed its name to “NTS, Inc.” and as of February 2, 2012 the Company's shares of Common Stock are traded on the NYSE MKT (f/k/a NYSE Amex) and the TASE under the new ticker symbol “NTS”. The name change is a reflection of our refined and enhanced business strategy which began with our acquisition of NTS Communications, Inc. (“NTSC”) in 2008 and its focus on the build out of our high-speed FTTP network.

Our principal executive offices are located in Lubbock, Texas.

Purchase of assets and liabilities of CoBridge Telecom, LLC

On April 25, 2011, NTSC entered into an Asset Purchase Agreement (the “Agreement”) with CoBridge Telecom, LLC, (“CoBridge”), pursuant to which CoBridge agreed to sell NTSC all of CoBridge’s assets in and around the communities of Colorado City, Levelland, Littlefield, Morton, and Slaton Texas pursuant to the terms of the Agreement. CoBridge provided cable television service in those communities via coaxial cable facilities and the Company acquired these assets to accelerate its penetration in these markets. As part of the transaction, NTSC also agreed to assume certain contracts of CoBridge which are necessary to continue operation of the assets that were acquired. The sale and purchase closed on July 1, 2011, but the purchase price was adjusted during November 2011 based on the number of CoBridge’s customers who failed to pay their accounts or cancelled service (offset by customers who converted to NTSC’s service in relevant markets). On July 24, 2012, NTSC and CoBridge agreed on the final purchase price of $962,970 and cost of $39,187 in connection with the provision of transition services to NTSC.
 
 
23

 

Purchase of assets and liabilities of Reach Broadband

On September 16, 2011, NTSC entered into an Asset Purchase Agreement (the “Agreement”) with RB3, LLC, and Arklaoktex, LLC, each doing business as Reach Broadband (“Reach”), pursuant to which Reach agreed to sell NTSC all of Reach’s assets in and around the communities of Abernathy, Anton, Brownfield, Hale Center, Idalou, Levelland, Littlefield, Meadow, New Deal, O’Donnell, Olton, Reese, Ropesville, Shallowater, Smyer, Tahoka, and Wolfforth Texas pursuant to the terms of the Agreement. Reach provided those communities with cable television service via coaxial cable facilities and Internet service via a wireless network and the Company acquired these assets to accelerate its penetration in these markets. The sale and purchase closed on December 1, 2011, but is subject to a purchase price adjustment based on the number of Reach’s customers who failed to pay their accounts or cancelled service (offset by customers who converted to NTSC’s service in relevant markets). The Company has not yet agreed on the final purchase price with Reach.

RESULTS OF OPERATIONS

Financial Information – Percentage of Revenues:
   
Three months ended
June 30,
   
Six months ended
June 30,
 
   
2012
   
2011
   
2012
   
2011
 
Revenues:
                               
Services on Fiber-To-The-Premise network
   
29.9
%
   
21.6
%
   
28.6
%
   
21.1
%
Leased local loop services and other
   
70.1
%
   
78.4
%
   
71.4
%
   
78.9
%
Total Revenues
   
100
%
   
100
%
   
100
%
   
100
%
                                 
Expenses:
                               
Cost of services (excluding depreciation and amortization)
   
45.2
%
   
48.6
%
   
46.5
%
   
48.9
%
Selling, general and administrative
   
36.0
%
   
37.0
%
   
35.2
%
   
37.1
%
Depreciation and amortization
   
9.6
%
   
8.7
%
   
10.0
%
   
8.5
%
Financing expenses, net
   
7.4
%
   
12.2
%
   
8.5
%
   
11.5
%
Other expenses
   
1.3
%
   
1.0
%
   
1.2
%
   
1.0
%
Total expenses
   
99.5
%
   
107.5
%
   
101.4
%
   
107.0
%
                                 
Income (loss) before taxes
   
0.5
%
   
(7.5)
%
   
(1.4)
%
   
(7.0)
%
                                 
Net Income (loss)
   
0.5
%
   
(5.8)
%
   
(0.9)
%
   
(5.1)
%

COMPARISON OF THE SIX MONTH PERIODS ENDED JUNE 30, 2012 AND JUNE 30, 2011

Revenues. Revenues for the six month period ended June 30, 2012 increased by 5.8% to $30,008,388 from $28,356,374 for the same period in 2011. Revenues from our Fiber-To-The-Premise ("FTTP") network in the six months ended June 30, 2012 increased 43.4% to $8,585,772 from $5,986,561 in the same period in 2011. As a percentage of total sales, FTTP revenues in the six months period ended June 30, 2012 increased to 28.6% from 21.1% for the same period in 2011. The growth of FTTP revenues is expected to continue due to the progress in the build out of our FTTP network in the communities which are located in the areas of the PRIDE Network projects, a subsidiary of NTSC.

Revenues from our leased local loop include revenues from wholesale, other carriers and other non-FTTP customers. Revenues from leased local loop in the six month period ended June 30, 2012 decreased 4.2% to $21,422,616 from $22,369,813 for the same period in 2011. As a percentage of total sales, leased local loop revenues in the six month period ended June 30, 2012 decreased to 71.4% from 78.9% for the same period in 2011. The decrease in revenues was caused by the aggressive promotional packages and incentives launched by competitors and were partially offset with revenues from assets that were purchased from CoBridge and Reach. The transactions with CoBridge and Reach were closed on July 1, 2011 and December 1, 2011, respectively, and revenues from these assets were recorded from the closing date as non-FTTP revenues. We generated cable television services revenues of $1,166,638 from the acquisition of Cobridge and Reach’s assets in the West Texas area. We expect that the decline in revenues from non-FTTP residential customer will continue in the second half of 2012, but will be offset by the increase in revenues in FTTP from business and residential customers.
 
 
24

 

Cost of services (excluding depreciation and amortization). Cost of services consists primarily of facilities and traffic time purchased from other telephone companies and content for our video services. Cost of services for the six month period ended June 30, 2012 increased 0.6% to $13,942,930 from $13,861,304 for the same period in 2011. Cost of services, as a percentage of revenues in the six month period ended June 30, 2012, decreased to 46.5% from 48.9% in the same period in 2011. We expect that the cost of services, as a percentage of revenues, will decline as we increase the portion of revenues generated from our high-margin FTTP services. FTTP services are provided over our fully owned fiber network and therefore we do not incur third party costs for leased network lines. As the revenue mix changes towards higher percentage of the high-margin FTTP revenues and lesser percentage of the low-margin revenues from non-FTTP residential customers and wholesale, the cost of services, as a percentage of revenues, decline.

Selling, General and Administrative Expenses. Selling expenses consist primarily of compensation costs for our sales, administrative and management employees. Selling, general and administrative expenses for the six month period ended June 30, 2012 increased 0.4% to $10,573,283 from $10,527,967 for the same period in 2011. The increase in the expenses resulted mainly from an increase in compensation costs and sales commissions on new sales. We have redirected resources to support our growth in the FTTP markets and we have moved most of the construction and installation work to subcontractors. We expect that these changes will allow us to be more efficient on the construction work and reduce the payroll and payroll-related expenses in the second half of 2012.

Depreciation and amortization. Depreciation and amortization expenses for the six month period ended June 30, 2012, increased 24.6% to $2,986,441 from $2,396,463 for the same period in 2011. The increase was due to the large investments in the development of the FTTP networks.

Financing Expenses. Financing expenses, net, for the six month period ended June 30, 2012, decreased 21.3% to $2,560,936 from $3,252,694 for the same period in 2011. Financing expenses consist of interest payable on our financial obligations, and the measurement of the Bonds, which are stated in NIS and linked to the Israeli Consumer Price Index (the “CPI”). The decrease in financing expenses is a result of the appreciation of 2.7% in the USD against the NIS and adjustment to the inflation of 1.3% during the six month period ended June 30, 2012 versus a devaluation of 3.8% in the USD against the NIS and adjustment to the inflation of 2.2% in the same period in 2011. Financing expenses also include expenses related to warrants that were issued to Burlingame Equity Investors, LP ("Burlingame") during March 2010, and the difference between the allocated relative fair value and the principal amount of the March 2010 loan from Burlingame.

Other Expenses. Other expenses for the six month period ended June 30, 2012, increased 30.4% to $377,876 from $289,846 for the same period in 2011. Other expenses consist of real estate taxes. The increase in other expenses is due to the increase in property tax for PRIDE Network, Inc.

Income taxes. We conduct our business in several states in the US. Therefore, our operating income is subject to varying rates of state tax in the US. Consequently, our effective tax rate is dependent upon the geographic distribution of our earnings or losses. However, we expect that our income taxes will not materially vary in relation to the geographic distribution of our profits inside the US. Due to non-deductible compensation related to stock options and non-deductible amortization of intangible assets, our effective tax rate was 38.5% and 26.4% for the six month periods ended June 30, 2012 and 2011, respectively.

COMPARISON OF THE THREE MONTH PERIODS ENDED JUNE 30, 2012 AND JUNE 30, 2011

Revenues. Revenues for the quarter ended June 30, 2012, increased 6.9% to $15,084,559 from $14,099,156 for the same period in 2011. Revenues from our Fiber-To-The-Premise ("FTTP") network for the quarter ended June 30, 2012, increased 48.4% to $4,513,105 from $3,041,161 in the same period in 2011. As percentage of total sales, FTTP revenues in the quarter ended June 30, 2012 increased to 29.9% from 21.6% for the same period in 2011. The growth of FTTP revenues is expected to continue due to the progress in the build out of our FTTP network in the communities which are located in the areas of the PRIDE Network projects, a subsidiary of NTSC.

Revenues from our leased local loop include revenues from wholesale, other carriers and other non-FTTP customers. Revenues from leased local loop for the quarter ended June 30, 2012, decreased 4.4% to $10,571,454 from $11,057,995 for the same period in 2011. As percentage of total sales, leased local loop revenues in the quarter ended June 30, 2012 decreased to 70.1% from 78.4% for the same period in 2011. The decrease in revenues was caused by the aggressive promotional packages and incentives launched by the competitors and were partially offset with revenues from assets that were purchased from CoBridge and Reach. The transactions with CoBridge and Reach were closed on July 1, 2011 and December 1, 2011, respectively, and revenues from these assets were recorded from the closing date as non-FTTP revenues. We generated cable television services revenues of $567,128 from the acquisition of Cobridge and Reach’s assets in the West Texas area. We expect that the decline in revenues from non-FTTP residential customer will continue in the second half of 2012, but will be offset by the increase in revenues in FTTP from business and residential customers.
 
 
25

 

Cost of services (excluding depreciation and amortization). Cost of services consists primarily of facilities and traffic time purchased from other telephone companies and content for our video services. Cost of services for the quarter ended June 30, 2012, decreased 0.4% to $6,820,276 from $6,849,829 for the same period in 2011. Cost of services, as a percentage of revenues for the quarter ended June 30, 2012, decreased to 45.2% from 48.6% in the same period in 2011. We expect that the cost of services, as percentage of revenues, will decline as we increase the portion of revenues generated from our high-margin FTTP services. FTTP services are provided over our fully owned fiber network and therefore we do not incur third party costs for leased network lines. As the revenue mix changes towards higher percentage of the high-margin FTTP revenues and lesser percentage of the low-margin revenues from non-FTTP residential customers and wholesale, the cost of services, as a percentage of revenues, decline.

Selling, General and Administrative Expenses. Selling expenses consist primarily of compensation costs for our sales, administrative and management employees. Selling, general and administrative expenses for the quarter ended June 30, 2012, increased 4.3% to $5,436,522 from $5,210,519 for the same period in 2011. The increase in the expenses resulted mainly from an increase in compensation costs and sales commissions on new sales.

Depreciation and amortization. Depreciation and amortization expenses for the quarter ended June 30, 2012, increased 18.4% to $1,452,468 from $1,227,181 for the same period in 2011. The increase was due to the large investments in the development of the FTTP networks.

Financing Expenses. Financing expenses, net, for the quarter ended June 30, 2012, decreased 35.2% to $1,119,237 from $1,728,264 for the same period in 2011. Financing expenses consist of interest payable on our financial obligations, and the measurement of the Bonds, which are stated in NIS and linked to the Israeli CPI. The decrease in financing expenses is a result of the appreciation of 5.6% in the USD against the NIS and adjustment to the inflation of 1.3% during the quarter ended June 30, 2012 versus a devaluation of 1.9% in the USD against the NIS and adjustment to the inflation of 1.3% in the same period in 2011. Financing expenses also includes expenses related to warrants that were issued to Burlingame on March 2010, and the difference between the allocated relative fair value and the principal amount of the March 2010 loan from Burlingame.

Other Expenses. Other expenses for the quarter ended June 30, 2012, increased 25.2% to $179,207 from $143,114 for the same period in 2011. Other expenses consist of real estate taxes. The increase in other expenses is due to the increase in property tax for PRIDE Network, Inc.

Income taxes. We conduct our business in several states in the US. Therefore, our operating income is subject to varying rates of state tax in the US. Consequently, our effective tax rate is dependent upon the geographic distribution of our earnings or losses. However, we expect that our income taxes will not materially vary in relation to the geographic distribution of our profits inside the US. Due to non-deductible compensation related to stock options and non-deductible amortization of intangible assets, our effective tax rate was 5.4% and 22.8% for the quarters ended June 30, 2012 and 2011, respectively.

LIQUIDITY AND CAPITAL RESOURCES

Cash and cash equivalents as of June 30, 2012 amounted to $7,662,701, compared to $6,563,514 as of December 31, 2011, an increase of $1,099,187. Net cash provided by operating activities in the quarter ended June 30, 2012, was $1,300,318, a decrease of $560,901 compared to $1,861,219 which was provided by operating activities for the quarter ended June 30, 2011. The decrease in cash flow from operating activities is mostly related to the following changes in working capital: (1) an increase in accounts receivable of $693,773 for the quarter ended June 30, 2012 compared to an increase of $1,859,615 for the same period of 2011; (2) an increase in prepaid expenses and other receivables of $182,200 for the quarter ended June 30, 2012 compared to a decrease of $586,775 for the same period of 2011; (3) an increase in the provision for bad debt of $228,184 for the quarter ended June 30, 2012 compared to an increase of $245,798 for the same period of 2011; (4) a decrease in other liabilities and accrued expenses of $385,474 for the quarter ended June 30, 2012 compared to a decrease of $951,474 for the same period of 2011 and (5) a decrease in trade payables of $459,354 for the quarter ended June 30, 2012 compared to an increase of $1,695,438 for the same period of 2011. Cash used for investing activities for the quarter ended June 30, 2012, was $7,670,105 compared to $4,187,995 for the same period of 2011. Of that amount, $6,491,382 is attributable to the build out of our FTTP projects in Levelland, TX and the PRIDE Network projects and $1,178,723 to the purchase of other equipment compared to $2,825,992 and $1,367,003 for the same period of 2011. Net cash provided by financing activities for the quarter ended June 30, 2012, was $7,468,974 and is primarily attributable to proceeds from long-term loans from the United States Department of Agriculture which are offset by repayment of the long-term loans from the United States Department of Agriculture, capital lease obligations and short term loans from banks and others.
 
 
26

 

Capital lease obligations. We are the lessee of switching and other telecom equipment under capital leases expiring on various dates through 2016.

As of June 30, 2012, we reported a working capital deficit of $4,018,193 compared to a working capital deficit of $3,596,693 on December 31, 2011. On June 22, 2012 we entered into Amendment No. 1 to the Original ICON Agreement providing for an additional loan in the amount of $3,500,000 (“Term Loan”) and a second loan in the amount of $3,100,000 (“Delayed Draw Term Loan”). We used the proceeds of the Term Loan solely for the payment and satisfaction in full of all liabilities owed to Burlingame, including but not limited to the Burlingame Note. We will use the proceeds of the Delayed Draw Term Loan solely for the purchase of equipment in connection with our project to construct a fiber network in Wichita Falls, upon the request made by us prior to September 25, 2012. We believe that increased revenues from our higher margin Fiber-To-The-Premise network will result in increased profitability and cash flows, which will lead to improvement in the working capital deficit to meet our anticipated cash requirements for at least the next 12 months. If, however, we do not generate sufficient cash from operations, or if we incur additional unanticipated liabilities or we are unable to renew and/or extend a portion of our short-term liabilities, we may be required to seek additional financing or sell equity or debt on terms which may not be as favorable as we could have otherwise obtained. No assurance can be given that any refinancing, additional borrowing or sale of equity or debt will be possible when needed or that we will be able to negotiate acceptable terms. In addition, our access to capital is affected by prevailing conditions in the financial and equity capital markets, as well as our own financial condition. While management believes that we will be able to meet our liquidity needs for at least the next 12 months, no assurance can be given that we will be able to do so.
 
The following table represents our contractual obligations and commercial commitments, excluding interest expense, as of June 30, 2012:

   
Payments Due by Period
 
Contractual Obligations
 
Total
   
Less than
1 Year
   
1-3 Years
   
4-5 Years
   
More than
5 Years
 
                               
Domestic Note Payable
 
$
11,805,744
   
$
996,516
   
$
3,721,728
   
$
7,087,500
   
$
-
 
Notes Payable from the United States Department of Agriculture
   
31,003,010
     
1,432,136
     
2,864,271
     
2,864,271
     
23,842,332
 
Bonds
   
14,571,954
     
3,760,858
     
7,207,397
     
3,603,699
     
-
 
Capital leases
   
820,717
     
469,599
     
339,009
     
12,109
     
-
 
Operating leases
   
2,061,515
     
1,294,854
     
657,282
     
109,379
     
-
 
                                         
Total contractual cash obligations
 
$
60,262,940
   
$
7,953,963
   
$
14,789,687
   
$
13,676,958
   
$
23,842,332
 

 
27

 

NTS, Inc.

The Series A Bonds

On December 13, 2007 (the “Date of Issuance”), we issued non-convertible bonds to Israeli institutional investors, for total gross proceeds of NIS 100,382,100 (approximately $25,562,032, based on the exchange rate as of December 13, 2007) (the “Series A Bonds”). The Series A Bonds were issued for an amount equal to their par value.

The Series A Bonds accrue annual interest that is paid semi-annually on the 1st of June and on the 1st of December of every year from 2008 until 2015 (inclusive). The principal of the Series A Bonds is repaid in eight equal annual payments on the 1st of December of every year from 2008 until 2015 (inclusive). The principal and interest of the Series A Bonds are linked to the Israeli CPI.
 
On November 4, 2008, we filed a public prospectus (the “Prospectus”) with the Israel Securities Authority and the TASE for listing of the Series A Bonds for trading on the TASE. On November 11, 2008 (the “Date of Listing”), the Series A Bonds commenced trading on the TASE. From the Date of Issuance until the Date of Listing, the Series A Bonds accrued annual interest at a rate of 9%. As of the Date of Listing, the interest rate for the unpaid balance of the Series A Bonds was reduced by 1% to an annual interest rate of 8%.
 
The Series A Bonds may only be traded in Israel. The Series A Bonds are currently rated Ba1 with a stable outlook by Midroog Limited, an Israeli rating company which is a subsidiary of Moody’s Investor Services ("Midroog").
 
On March 25, 2008, we issued the holders of the Series A Bonds, for no additional consideration, 956,020 (non-tradable) warrants, each exercisable at an exercise price of $2.04 (as adjusted in November 2011) with a term of 4 years, commencing on September 2, 2008.
 
Loan agreement with ICON Agent, LLC
 
On October 6, 2011, we entered into a term loan, guarantee and security agreement (the “ Original ICON Agreement”) between the following: (1) ICON Agent, LLC, acting as agent for the Lenders signatory thereto; (2) we, as Guarantor; (3) Xfone USA, Inc., NTS Communications, Inc., Gulf Coast Utilities, Inc., eXpeTel Communications, Inc., NTS Construction Company, Garey M. Wallace Company, Inc., Midcom of Arizona, Inc., Communications Brokers, Inc., and NTS Management Company, LLC, acting as Borrowers and Guarantors; and (4) PRIDE Network, Inc., and NTS Telephone Company, LLC (together with the Borrowers and Guarantors acting as Credit Parties).

On June 22, 2012 we entered into Amendment No. 1 to the Original ICON Agreement providing for:

(i)  
An additional Term Loan in the amount of $3,500,000, for the payment of all liabilities owed to Burlingame,

(ii)  
A Delayed Draw Term Loan in the amount of $3,100,000, for the purchase of equipment in connection with the Company's project to construct a fiber network in Wichita Falls, upon the request made by the Company prior to September 25, 2012 and

(iii)  
Certain other amendments to the Original ICON Loan as described in Amendment No. 1.

As per the Amendment No. 1, the principal amount of the term loan (a “Closing Date Term Loan”) of $7,500,000 bearing interest of 12.75% per annum is payable in 68 consecutive monthly installments with the first 20 monthly payments being payments of accrued interest only. The principal amount of the term loan (an “Amendment Date Term Loan”) of $3,500,000 bearing interest of 12.75% per annum is payable in 60 consecutive monthly installments with the first 12 monthly payments being payments of accrued interest only. The loans are secured by a lien against all of each Borrower's and Guarantor's property and assets, whether real or personal, tangible or intangible, and whether now owned or hereafter acquired, or in which it now has or at any time in the future may acquire any right, title, or interest; such as all accounts, all deposit accounts, all other bank accounts and all funds on deposit therein; all money, cash and cash equivalents, all investment property, all stock (other than the publicly traded shares of Stock issued by NTSI), all goods (including inventory, equipment and fixtures), all chattel paper, documents and instruments, all Books and Records, all general intangibles (including all Intellectual Property, contract rights, choses in action, payment intangibles and software), all letter-of-credit rights, all commercial tort claims, all FCC Licenses, all supporting obligations provided, however, that none of the assets of PRIDE Network, Inc. and NTS Telephone Company, LLC are being used as collateral for the Loan and are specifically excluded. The fundings of the Closing Date Term Loan and Amendment Date Term Loan were made on October 27, 2011 and June 22, 2012 respetively.
 
On August 9, 2012, we entered into Amendment No. 2 to the Original ICON Agreement ("Amendment No. 2") providing for revised amortization schedules of the Closing Date Term Loan and the Amendment Date Term Loan.  Please see the full text of Amendment No. 2, attached hereto as Exhibit 10.150.
 
 
28

 

We have to maintain a Fixed Charge Coverage Ratio of not less than 1.15 to 1.00 for the trailing four fiscal quarter period most recently ended if at any time cash is less than $3,000,000 as of the last day of any fiscal quarter. Pursuant to Amendment No. 1, Senior Leverage Ratio should not exceed 2.00 to 1.00 from June 30, 2012 through March 31, 2013, 1.75 to 1.00 from June 30, 2013 through December 31, 2013 and 1.50 to 1.00 from March 31, 2014 and thereafter.

The total outstanding amount of the loans as of June 30, 2012 is $11,000,000. As of June 30, 2012, there was no outstanding amount on the Delayed Draw Term Loan.
 
Securities Purchase Agreement

On March 23, 2010, we entered into a Securities Purchase Agreement (the “Purchase Agreement”) with an existing shareholder, Burlingame. As part of the Purchase Agreement, we issued a senior promissory note in the aggregate principal amount of $3,500,000, with a maturity date of March 22, 2012. Interest accrued at an annual rate of 10% and was payable quarterly. The note was not secured and had equal liquidation rights with our Series A Bonds issued in Israel on December 13, 2007. We evaluated the fair value of each of the three securities that were issued under the Purchase Agreement (i.e., the promissory note, 2,173,913 shares of our common stock, and a warrant to purchase 950,000 shares of our common stock) and recorded the promissory note at its fair value of $2,556,240. The difference between the fair value and the principal amount was expensed ratably over the life of the promissory note.

On May 2, 2011, we entered into a First Amendment to the Promissory Note, pursuant to which we and Burlingame agreed to extend the maturity date of the Promissory Note from March 22, 2012 to March 22, 2013.

The effective interest rate of the Promissory Note was calculated at 22.1%. The total amount of discount recognized for the six month period ended June 30, 2012 was $252,796. The outstanding principal amount of the Promissory Note of $3,500,000 (plus accrued interest) was paid off on June 22, 2012.

Subsequent events

Buy-back plan

Our Board adopted a buy-back plan (the “Plan”), effective as of February 13, 2012, according to which we may, from time to time, repurchase our Bonds which are traded on the TASE.

Under the Plan we are authorized to repurchase Series A Bonds for up to a total amount of NIS 5 million (approximately USD 1.35 million) in transactions on the TASE or outside the TASE, until December 31, 2012. Any repurchases of the Series A Bonds will be financed from our internal sources, as available from time to time. The Board has authorized our management (“Management”) to manage the performance of repurchases according to the Plan, including the conduct of negotiations, at such times, scopes, prices and other terms as Management deems fit. The timing, amounts and terms of any Series A Bonds repurchased by us will be determined, at the discretion of Management, based on market conditions and opportunities, economic advisability and other customary criteria and factors.

Repurchases of the Bonds may be carried out by us and/or our subsidiaries, either directly and/or through a third party. Bonds repurchased by us will be canceled and removed from trading on the TASE and will not be permitted to be reissued. The Board of Director's resolution is not a commitment to repurchase any Bonds under the Plan. The Plan may be suspended or discontinued by us at any time.

On July 4, 2012, NTSC, our wholly-owned subsidiary, purchased pursuant to the Plan, in a single transaction outside the TASE, NIS 1,339,310 in par value of Bonds at an aggregate purchase price of NIS 1,091,538 (approximately $278,596). Pursuant to the indenture governing the Bonds, any Bonds purchased by our subsidiary (as opposed to Bonds repurchased by us ourselves) are not canceled or removed from trading on the TASE.
 
Series A Bonds Rating

As of August 6, 2012, the Bonds are rated Ba1 with a stable outlook by Midroog.
 
US subsidiaries

NTS Telephone Company, LLC, a wholly owned subsidiary of NTSC has received approval from the Rural Utilities Service (“RUS”), a division of the United States Department of Agriculture, for an $11.8 million debt facility to complete a telecommunications overbuild project in Levelland, Texas. The principal of the RUS loan is repaid monthly starting one year from the initial advance date until full repayment after 17 years. The loan bears interest at the average yield on outstanding marketable obligations of the United States having the final maturity comparable to the final maturity of the advance. Advances are provided as the construction progresses, and the interest rate is set based upon the prevailing rate at the time of each individual advance. The note is non-recourse to NTSC and all other NTSC subsidiaries and is secured by NTS Telephone’s assets which were $13.7 million at June 30, 2012. As of June 30, 2012, the annual average weighted interest rate on the outstanding advances was 3.54%. The total aggregate amount of these loans as of June 30, 2012 is $9,953,550. The loans are to be repaid in monthly installments until 2024.
 
 
29

 
 
PRIDE Network, Inc., a wholly owned subsidiary of NTSC, received approval from the Broadband Initiative Program of the American Recovery and Reinvestment Act, for a total $99.9 million funding in form of $45.9 million in grants and $54 million in 19 to 20-year loans. The loans bear interest at the U.S. Treasury rate for comparable loans with comparable maturities. The funding will allow us to develop our FTTP infrastructure, known as the PRIDE Network projects, in northwestern Texas and further expand it to communities in southern Louisiana. Construction work of PRIDE Network's FTTP infrastructure started in October 2010. The total aggregate amount of these loans and grants as of June 30, 2012 is $21,049,460 and $17,107,108, respectively. The loans are non-recourse to NTSC and all other NTSC subsidiaries and are secured by PRIDE Network's assets which were $25.7 million at June 30, 2012. As of June 30, 2012, the annual average weighted interest rate on the outstanding advances was 3.24%. As of June 30, 2012, the total amount of loan and grant available in the future is $32,525,916 and $28,769,813, respectively.

On April 25, 2011, NTSC, our wholly-owned subsidiary, entered into an Asset Purchase Agreement (the “Agreement”) with CoBridge Telecom, LLC, (“CoBridge”), pursuant to which CoBridge agreed to sell NTSC all of CoBridge’s assets in and around the communities of Colorado City, Levelland, Littlefield, Morton, and Slaton Texas pursuant to the terms of the Agreement. The note was issued on July 1, 2011 and is payable in 36 equal monthly installments. The total outstanding amount of the note as of June 30, 2012 is $403,229.
 
On September 16, 2011, NTSC, our wholly-owned subsidiary, entered into an Asset Purchase Agreement (the “Agreement”) with RB3, LLC, and Arklaoktex, LLC, each doing business as Reach Broadband (“Reach”), pursuant to which Reach agreed to sell NTSC all of Reach’s assets in and around the communities of Abernathy, Anton, Brownfield, Hale Center, Idalou, Levelland, Littlefield, Meadow, New Deal, O’Donnell, Olton, Reese, Ropesville, Shallowater, Smyer, Tahoka, and Wolfforth Texas pursuant to the terms of the Agreement. The note was issued on December 1, 2011 and is payable in 36 equal monthly installments. The total outstanding amount of the note as of June 30, 2012 is $402,514.
 
IMPACT OF INFLATION AND CURRENCY FLUCTUATIONS

Following the divestiture of our UK and Israeli operations in summer 2010, all of our assets, liabilities (except the Series A Bonds), revenues and expenditures are in USD.

Notwithstanding having our Series A Bonds stated in NIS and linked to the Israeli CPI, during the six months ended June 30, 2012, our outstanding liability was decreased by approximately $212,108 as a result of the devaluation of the NIS in relation with the USD.
 
Item 3.
Quantitative and Qualitative Disclosures about Market Risk
 
Not applicable.
 
Item 4.
Controls and Procedures
     
(a) Management’s Quarterly Report on Internal Control over Financial Reporting.
 
As of the end of the period covered by this Quarterly Report, we carried out an evaluation, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer/Principal Accounting Officer, of the effectiveness of the design and operation of our disclosure controls and procedures. Based upon this evaluation, our Chief Executive Officer and Chief Financial Officer/Principal Accounting Officer have concluded that information required to be disclosed is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission's rules and forms, and is accumulated and communicated to management, including our Chief Executive Officer and Chief Financial Officer/Principal Accounting Officer, to allow for timely decisions regarding required disclosure of material information required to be disclosed in the reports that we file or submit under the Exchange Act. Our disclosure controls and procedures are designed to provide reasonable assurance of achieving these objectives and our Chief Executive Officer and Chief Financial Officer/Principal Accounting Officer have concluded that our disclosure controls and procedures are effective to a reasonable assurance level of achieving such objectives. However, it should be noted that the design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions, regardless of how remote.
 
(b) Changes in Internal Control Over Financial Reporting.
 
There were no changes in our internal control over financial reporting identified in connection with the evaluation described above during the period covered by this Quarterly Report that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 
30

 
 
PART II:
 
OTHER INFORMATION
 
Item 1.
Legal Proceedings
 
Eliezer Tzur et al. vs. 012 Telecom Ltd. et al.
 
On January 19, 2010, Eliezer Tzur et al. (the “Petitioners”) filed a request to approve a claim as a class action (the “Class Action Request”) against Xfone 018 Ltd. (“Xfone 018”), our former 69% Israel-based subsidiary, and four other Israeli telecom companies, all of which are entities unrelated to us (collectively with Xfone 018, the “Defendants”), in the District Court in Petach Tikva, Israel (the “Israeli Court”).  The Petitioners’ claim alleges that the Defendants have not fully fulfilled their alleged legal requirement to bear the cost of telephone calls by customers to the Defendants’ respective technical support centers. One of the Petitioners, Mr. Eli Sharvit (“Mr. Sharvit”), seeks damages from Xfone 018 for the cost such telephone calls allegedly made by him during the 5.5-year period preceding the filing of the Class Action Request, which he assessed at NIS 54.45 (approximately $14). The Class Action Request, to the extent it pertains to Xfone 018, states total damages of NIS 7,500,000 (approximately $1,911,802) which reflects the Petitioners’ estimation of damages caused to all customers that (pursuant to the Class Action Request) allegedly called Xfone 018’s technical support number during a certain period defined in the Class Action Request.
 
On February 22, 2011, Xfone 018 and Mr. Sharvit entered into a settlement agreement, which following the instructions of the Israeli Court was supplemented on May 3, 2011 and amended on July 18, 2011 and on March 21, 2012 (the “Settlement Agreement”). Pursuant to the Settlement Agreement, Xfone 018 agreed to compensate its current and past registered customers of international calling services (the “Services”) who called its telephone service center from July 4, 2004 until February 21, 2010, due to a problem in the Services, and were charged for such calls (the “Compensation”). The Compensation includes a right for a single, up to ten minutes, free of charge, international call to one landline destination around the world, and shall be valid for a period of six months. In addition, Xfone 018 agreed to pay Mr. Sharvit a one-time special reward in the amount of NIS 10,000 (approximately $2,549) (the “Reward”). Xfone 018 further agreed to pay Mr. Sharvit attorneys' fee for professional services in the amount of NIS 40,000 (approximately $10,196) plus VAT (the “Attorneys Fee”). In return, Mr. Sharvit and the members of the Represented Group (as defined in the Settlement Agreement) agreed to waive any and all claims in connection with the Class Action Request. As required by Israeli law in such cases, the Settlement Agreement is subject to the approval of the Israeli Court. On April 30, 2012, the Israeli Court appointed a CPA as an examiner to review and assess the Settlement Agreement (the “Examiner”). The Examiner was instructed to advise the Israeli Court whether in his opinion the Settlement Agreement is reasonable. The Examiner has not yet finalized his review and assessment.
 
On May 14, 2010, we entered into an agreement (including any amendment and supplement thereto, the “Agreement”) with Marathon Telecom Ltd. for the sale of our majority (69%) holdings in Xfone 018. Pursuant to Section 10 of the Agreement, we are fully and exclusively liable for any and all amounts, payments or expenses which will be incurred by Xfone 018 as a result of the Class Action Request. Section 10 of the Agreement provides that we shall bear any and all expenses or financial costs which are entailed by conducting the defense on behalf of Xfone 018 and/or the financial results thereof, including pursuant to a judgment or settlement (it was agreed that in the event that Xfone 018 will be obligated to provide services at a reduced price, we shall bear only the cost of such services). Section 10 of the Agreement further provides that the defense by Xfone 018 shall be performed in full cooperation with us and with mutual assistance. It is agreed between us and Xfone 018 that subject to and upon the approval of the Settlement Agreement by the Israeli Court, we shall bear and/or pay: (i) the costs of the Compensation; (ii) the Reward; (iii) the Attorneys Fee; and (iv) Xfone 018 attorneys' fees for professional services in connection with the Class Action Request, estimated at approximately NIS 75,000 (approximately $19,118).
 
In the event the Settlement Agreement is not approved by the Israeli Court, Xfone 018 intends to vigorously defend the Class Action Request.
 
Danny Jay & Stephanie Tollison vs. NTS Communications, Inc.
 
On December 20, 2010, our wholly-owned subsidiary, NTS Communications, Inc. (“NTSC”), received a demand letter from Danny J. and Stephanie Tollison (the “Petitioners”) claiming $3 million in damages stemming from the search of Mr. Tollison’s home and his wife’s business by the FBI.  The Petitioners alleged that the search was effected because of incorrect information provided by NTSC to the FBI pursuant to a subpoena. The investigation was dropped when the FBI was unable to find what they were looking for and identified another suspect.
 
On July 19, 2011 the Petitioners filed suit in 350th District Court of Taylor County, Texas seeking $5 million in economic and non-economic damages and asserting breach of contract, negligence, gross negligence, defamation, libel, invasion of privacy, and intentional infliction of emotional distress claims. NTSC has responded by filing a denial of all claims and a request to remove the case to the United States District Court for the Northern District of Texas on the basis that it involves a question of federal law. The request was denied and a jury trial before the state court was scheduled for April 2013. NTSC’s insurance carrier has agreed to defend the suit and has referred the matter to counsel. NTSC anticipates that its insurance carrier will cover all costs and damages without any liability to NTSC.
 
 
31

 
 
Item 1A.
Risk Factors
 
Not applicable.
 
Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds
 
None.
 
Item 3.
Defaults upon Senior Securities
 
None.
 
Item 4.
Mine Safety Disclosures
 
Not applicable.

Item 5.
Other Information
 
None.
 
 
32

 
 
 
Item 6.
Exhibits

Exhibit Number
 
Description
2.
 
Agreement and plan of reorganization dated September 20, 2000, between the Company and Swiftnet Limited. (1)
3.1
 
Articles of Incorporation of the Company.(1)
3.1.1
 
Certificate of Amendment to the Articles of Incorporation of the Company, dated January 18, 2007. (56)
3.1.2
 
Certificate of Amendment to the Articles of Incorporation of the Company, dated January 25, 2012 (73)
3.6
 
Bylaws of Xfone USA, Inc. (7)
3.12
 
Reamended and Restated Bylaws of Xfone, Inc. dated November 18, 2010. (68)
4.
 
Specimen Stock Certificate and Specimen Warrant Certificate. (75)
4.1-4.8
 
Forms related to the Rights Offering of 2011.
10.1
 
Agreement dated May 11, 2000, between Swiftnet Limited and Guy Nissenson.(1)
10.2
 
Employment Agreement dated January 1, 2000 with Bosmat Houston. (1)
10.3
 
Loan Agreement dated August 5, 2000, with Swiftnet Limited, Guy Nissenson, and Nissim Levy.(1)
10.4
 
Promissory Note dated September 29, 2000, between the Company and Abraham Keinan.(1)
10.5
 
Stock Purchase Agreement dated June 19, 2000, between Swiftnet Limited, Abraham Keinan, and Campbeltown Business Ltd. (1)
10.6
 
Consulting Agreement dated May 11, 2000 between Swiftnet Limited and Campbeltown Business Ltd.(1)
10.7
 
Agreement dated July 30, 2001, with Campbeltown Business Ltd.(1)
10.8
 
Contract dated June 20, 1998, with WorldCom International Ltd.(1)
10.9
 
Contract dated April 11, 2000, with VoiceNet Inc.(1)
10.10
 
Contract dated April 25, 2000, with InTouchUK.com Ltd.(1)
10.11
 
Letter of Understanding dated July 30, 2001, from Campbeltown Business Ltd. to the Company.(2)
10.12
 
Agreement dated April 6, 2000, between Adar International, Inc./Mr. Sidney J. Golub and Swiftnet Limited. (2)
10.13
 
Lease Agreement dated December 4, 1991, between Elmtree Investments Ltd. and Swiftnet Limited.(2)
10.14
 
Lease Agreement dated October 8, 2001, between Postwick Property Holdings Limited and Swiftnet Limited. (2)
10.15
 
Agreement dated September 30, 2002, between the Company, Swiftnet Limited., and Nir Davison.(5)
10.16
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Platinum Partners Value Arbitrage Fund LP, Countrywide Partners LLC and WEC Partners LLC. (6)
10.17
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Simon Langbart, Robert Langbart, Arik Ecker, Zwi Ecker, Michael Derman, Errol Derman, Yuval Haim Sobel, Zvi Sobel, Tenram Investment Ltd., Michael Zinn, Michael Weiss. (6)
10.18
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Southridge Partners LP and Southshore Capital Fund Ltd. (6)
10.19
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Crestview Capital Master LLC. (6)
10.20
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Adam Breslawsky, Oded Levy, Michael Epstein, Steven Frank, Joshua Lobel, Joshua Kazan and The Oberon Group LLC. (6)
10.21
 
Newco (Auracall Limited) Formation Agreement.(6)
10.22
 
Agreement with ITXC Corporation.(6)
 
 
33

 
 
10.23
 
Agreement with Teleglobe International.(6)
10.23.1
 
Amendment to Agreement with Teleglobe International.(6)
10.24
 
Agreement with British Telecommunications.(6)
10.25
 
Agreement with Easyair Limited (OpenAir).(6)
10.26
 
Agreement with Worldnet.(6)
10.27
 
Agreement with Portfolio PR.(6)
10.28
 
Agreement with Stern and Company.(6)
10.29
 
Letter to the Company dated December 31, 2003, from Abraham Keinan.(6)
10.30
 
Agreement between Swiftnet Limited and Dan Kirschner.(8)
10.31
 
Agreement and Plan of Merger.(7)
10.32
 
Escrow Agreement.(7)
10.33
 
Release Agreement.(7)
10.34
 
Employment Agreement date March 10, 2005, between Xfone USA, Inc. and Wade Spooner.(7)
10.34.1
 
Separation Agreement and Release, dated August 15, 2008, between Xfone USA, Inc. and Wade Spooner. (56)
10.35
 
Employment Agreement date March 10, 2005, between Xfone USA, Inc. and Ted Parsons.(7)
10.35.1
 
Separation Agreement and Release, dated August 15, 2008, between Xfone USA, Inc. and Ted Parsons. (56)
10.36
 
First Amendment to Agreement and Plan of Merger (to acquire WS Telecom, Inc.).(11)
10.37
 
Finders Agreement with The Oberon Group, LLC.(11)
10.38
 
Agreement with The Oberon Group, LLC.(11)
10.39
 
Management Agreement between WS Telecom, Inc. and Xfone USA, Inc.(8)
10.40
 
Engagement Letter to Tommy R. Ferguson, Confidentiality Agreement, and Executive Inventions Agreement dated August 19, 2004. (11)
10.41
 
Voting Agreement dated September 28, 2004.(11)
10.42
 
Novation Agreement executed September 27, 2004.(11)
10.43
 
Novation Agreement executed September 28, 2004.(11)
10.44
 
Investment Agreement dated August 26, 2004, with Ilan Shoshani.(12)
10.44.1
 
Addendum and Clarification to the Investment Agreement with Ilan Shoshani dated September 13, 2004. (12)
10.45
 
Agreement dated November 16, 2004, with Elite Financial Communications Group.(13)
10.46
 
Financial Services and Business Development Consulting Agreement dated November 18, 2004, with Dionysos Investments (1999) Ltd. (13)
10.47
 
Agreement and Plan of Merger to acquire I-55 Internet Services, Inc. dated August 18, 2005.(14)
10.48
 
Agreement and Plan of Merger to acquire I-55 Telecommunications, LLC dated August 26, 2005.(15)
10.49
 
Securities Purchase Agreement, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
10.50
 
Secured Convertible Term Note, dated September 27, 2005, by the Company in favor of Laurus Master Fund, Ltd.; Adjustment Provision Waiver Agreement, dated September 27, 2005, by and between the Company and Laurus Fund, Ltd. (16)
 
 
34

 
 
10.51
 
Common Stock Purchase Warrant, dated September 27, 2005, by the Company in favor of Laurus Master Fund, Ltd. (16)
10.52
 
Registration Rights Agreement, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
10.53
 
Master Security Agreement, dated September 27, 2005, by and between the Company, Xfone USA, Inc., eXpeTel Communications, Inc., Gulf Coast Utilities, Inc., and Laurus Master Fund, Ltd. (16)
10.54
 
Stock Pledge Agreement, dated September 27, 2005, by and between the Company, Xfone USA, Inc., and Laurus Master Fund, Ltd. (16)
10.55
 
Subsidiary Guarantee dated September 27, 2005, by Xfone USA, Inc., eXpeTel Communications, Inc. and Gulf Coast Utilities, Inc. in favor of Laurus Master Fund, Ltd. (16)
10.56
 
Funds Escrow Agreement, dated September 27, 2005, by and between the Company, Laurus Master Fund, Ltd. and Loeb & Loeb LLP; Disbursement Letter, dated September 27, 2005. (16)
10.57
 
Incremental Funding Side Letter, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
10.58
 
Securities Purchase Agreement dated September 28, 2005, by and between the Company and Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
10.59
 
Registration Rights Agreement, dated September 28, 2005, by and between the Company and Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
10.60
 
Common Stock Purchase Warrant, dated September 28, 2005, by the Company in favor of the Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
10.61
 
Escrow Agreement, dated September 28, 2005, by and between the Company, the Purchasers and Feldman Weinstein LLP. (16)
10.62
 
Management Agreement dated October 11, 2005.(17)
10.63
 
First Amendment to Agreement and Plan of Merger (to acquire I-55 Internet Services, Inc.), dated October 10, 2005. (17)
10.64
 
Letter Agreement with MCG Capital Corporation dated October 10, 2005.(17)
10.65
 
Securities Purchase Agreement, dated November 23, 2005, between the Company and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
10.66
 
Registration Rights Agreement, dated November 23, 2005, between the Company and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
10.67
 
Common Stock Purchase Warrant, dated November 23, 2005, by the Company in favor of Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
10.68
 
Escrow Agreement, dated November 23, 2005, between the Company, the Escrow Agent, and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
10.69
 
Management Agreement with I-55 Telecommunications, LLC dated October 12, 2005.(19)
10.70
 
Agreement - General Terms and Conditions with EBI Comm, Inc., dated January 1, 2006.(21)
10.71
 
Asset Purchase Agreement with Canufly.net, Inc., dated January 10, 2006.(21)
10.72
 
Stock Purchase Agreement dated May 10, 2006, by and among the Company, Story Telecom, Inc., Story Telecom Limited, Story Telecom (Ireland) Limited, Nir Davison, and Trecastle Holdings Limited. (23)
10.73
 
Agreement dated May 25, 2006, by and among the Company and the shareholders of Equitalk.co.uk Limited. (24)
10.74
 
Securities Purchase Agreement, dated June 19, 2006, by and between the Company and the Purchasers. (25)
10.75
 
Registration Rights Agreement, dated June 19, 2006, by and between the Company and the Purchasers. (25)
10.76
 
Common Stock Purchase Warrant, dated June 19, 2006, by the Company in favor of the Purchasers.(25)
10.77
 
Escrow Agreement, dated June 19, 2006, by and between the Company, the Escrow Agent, and the Purchasers. (25)
10.78
 
Form of Indemnification Agreement between the Company and its Directors and Officers.(27)
 
 
35

 
 
10.79
 
Agreement to Purchase Promissory Note dated October 31, 2005, with Randall Wade James Tricou.(27)
10.80
 
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Tricou Construction. (27)
10.81
 
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Bon Aire Estates. (27)
10.82
 
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Bon Aire Utility. (27)
10.83
 
Agreement to Purchase Promissory Note dated February 3, 2006, with Danny Acosta.(27)
10.84
 
Letter Agreement dated November 15, 2005, with Oberon Securities, LLC.(27)
10.85
 
Letter Agreement dated June 15, 2006, with Oberon Securities, LLC.(27)
10.86
 
Second Amendment to Agreement and Plan of Merger (to acquire WS Telecom, Inc.), dated June 28, 2006. (27)
10.87
 
General Contract for Services dated January 1, 2005, by and between the Company and Swiftnet Limited. (27)
10.88
 
Service Agreement dated December 6, 2005, by and between the Company and Elite Financial Communications Group, LLC. (27)
10.89
 
Agreement for Market Making in Securities dated July 31, 2006, by and between the Company and Excellence Nessuah Stock Exchange Services Ltd. (27)
10.90
 
Shareholders Loan Agreement, dated September 27, 2006, by and between Auracall Limited, Swiftnet Limited, and Dan Kirschner. (28)
10.91
 
Service Agreement, dated November 7, 2006, by and between the Company and Institutional Marketing Services, Inc. (28)
10.92
 
Consultancy Agreement, dated November 20, 2006, by and between the Company and Crestview Capital Partners, LLP. (29)
10.93
 
Agreement dated December 24, 2006, by and between the Company, Halman-Aldubi Provident Funds Ltd., and Halman-Aldubi Pension Funds Ltd. (translation from Hebrew). (31)
10.94
 
First Amendment to Financial Services and Business Development Consulting Agreement dated February 8, 2007, by and between the Company and Dionysos Investments (1999) Ltd. (33)
10.95
 
Agreement dated February 8, 2007, by and between the Company, Swiftnet Limited, Campbeltown Business, Ltd., and Mr. Abraham Keinan. (33)
10.96
 
First Amendment to General Contract for Services, dated March 14, 2007, by and between the Company and Swiftnet Limited. (34)
10.97
 
Employment Agreement, dated March 28, 2007, between Swiftnet Limited and Abraham Keinan.(34)
10.98
 
Consulting Agreement, dated March 28, 2007, between the Company and Abraham Keinan. (34)
10.99
 
Employment Agreement, dated March 28, 2007, between Swiftnet Limited and Guy Nissenson.(34)
10.100
 
Consulting Agreement, dated March 28, 2007, between the Company and Guy Nissenson.(34)
10.101
 
Settlement Agreement and Release dated May 31, 2007, by and among Embarq Logistics, Inc, Xfone USA, Inc. and the Company. (35)
10.102
 
Promissory Note dated May 31, 2007, by Xfone USA, Inc.(35)
10.103
 
Parent Guarantee dated as of May 31, 2007 by the Company in favor of Embarq Logistics, Inc.(35)
10.104
 
Share Purchase Agreement dated August 15, 2007, by and between Dan Kirschner, as Seller, Swiftnet Limited, as Buyer, and Xfone, Inc. (36)
10.105
 
Inter-Company Loan Agreement dated August 15, 2007, by and between Auracall Limited, as Lender, and Swiftnet Limited, as Borrower. (36)
10.106
 
Stock Purchase Agreement dated August 22, 2007, by and among the Company, NTS Communications, Inc., and the Shareholders of NTS Communications, Inc. (37)
10.107
 
Letter of Joint Venture dated June 15, 2007, by and among the Company and NTS Holdings, Inc.(37)
10.107.1
 
Form of Free Cash Flow Participation Agreement to be Entered into between the Company and NTS Holdings, Inc. Upon Consummation of the Acquisition. (37)
10.107.2
 
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Barbara Baldwin upon Consummation of the Acquisition. (37)
10.107.3
 
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Jerry Hoover upon Consummation of the Acquisition. (37)
10.107.4
 
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Brad Worthington upon Consummation of the Acquisition. (37)
10.108
 
Employment Contract signed on August 26, 2007, by and between the Company’s Israeli based Subsidiary Xfone 018 ltd. and Roni Haliva. (38)
10.109
 
Subscription Agreement for the Purchase of Shares of Common Stock of the Company Dated October 23, 2007. (39)
10.110
 
Subscription Agreement for the Purchase of Shares of Common Stock of the Company Dated November 1, 2007. (41)
 
 
36

 
 
10.111
 
Form of Subscription Agreement for the Purchase of Units Consisting of Two Shares of Common Stock and One Common Stock Purchase Warrant. (42)
10.112
 
Form of Common Stock Purchase Warrant.(42)
10.113
 
First Amendment to Stock Purchase Agreement.(43)
10.114.1
 
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Barbara Baldwin. (44)
10.114.2
 
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Jerry Hoover. (44)
10.114.3
 
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Brad Worthington (44)
10.115
 
Free cash flow participation agreement dated as of February 26, 2008, by and among Xfone, Inc. and NTS Holdings, Inc. (44)
10.116
 
Escrow agreement dated as of February 26, 2008, by and among Xfone, Inc., Chris Chelette, Robert Healea and Kevin Buxkemper the NTS shareholders representatives, and Trustmark National Bank, as Escrow Agent. (44)
10.117
 
Release, effective as of February 26, 2008, entered into by each of Barbara Baldwin, Jerry Hoover and Brad Worthington (44)
10.118
 
Noncompetition, nondisclosure and nonsolicitation agreement dated as of February 26, 2008, by and among Xfone, Inc., Telephone Electronics Corporation, Joseph D. Fail, Chris Chelette, Robert Healea, Joey Garner, and Walter Frank. (44)
10.119
 
Second amendment to stock purchase agreement entered into by each of February 26, 2008 by and among Xfone, Inc., NTS Communications, Inc. and Chris Chelette, Robert Healea and Kevin Buxkemper, as the NTS shareholders representatives. (44)
10.120
 
Modification of Financial Consulting Agreement between Xfone, Inc. and Oberon Securities, LLC in connection with NTS Communications Transaction. (45)
10.121
 
Fees Due to Oberon Securities, LLC from Xfone, Inc. in connection with services provided in conjunction with the acquisition of NTS Communications, Inc. (45)
10.122
 
Agreement of Principles dated March 17, 2008 by and between Xfone 018 Ltd. and Tiv Taam Holdings 1 Ltd. (Free Translation from Hebrew). (46)
10.123
 
Compromise Agreement dated March 25, 2008, between Xfone, Inc., Story Telecom, Inc., Story Telecom Limited, Trecastle Holdings Limited and Nir Davison. (47)
10.124
 
Securities Purchase Agreement dated March 25, 2008, between Xfone, Inc., Trecastle Holdings Limited and Nir Davison. (47)
10.125
 
Third Amendment to Stock Purchase Agreement entered into as of April 25, 2008 by and among Chris Chelette, Robert Healea and Kevin Buxkemper, as Sellers’ Representative, NTS Communications, Inc. and Xfone, Inc. (48)
10.126
 
Irrevocable Option Agreement dated as of July 1, 2008 by and between Abraham Keinan and Guy Nissenson (49)
10.127
 
Indenture, entered into on December 13, 2007, as amended and restated on October 27, 2008, between Xfone, Inc. and Ziv Haft Trusts Company Ltd. (free translation from Hebrew). (51)
10.128
 
Form of warrant (free translation from Hebrew). (51)
10.129
 
Underwriting Agreement between Xfone, Inc., Excellence Nessuah Underwriting (1993) Ltd. and The First International & Co. - Underwriting and Investments Ltd., dated November 2, 2008 (free translation from Hebrew). (52)
10.130
 
Market Making Agreement dated December 24, 2008, by and between Xfone, Inc. and Harel Finance Trade & Securities Ltd. (Free translation from Hebrew) (54)
10.131
 
Second Amendment to Financial Services and Business Development Consulting Agreement dated January 15, 2009, by and between Xfone, Inc. and Dionysos Investments (1999) Ltd. (55)
10.132
 
Employment Agreement between NTS Communications, Inc. and Niv Krikov dated July 1, 2009. (59)
10.133
 
Agreement dated November 20, 2009 between Xfone, Inc., David Sela and Blokshtil Ltd. (English translation). (60)
10.134
 
Loan Agreement dated as of December 10, 2009, between Swiftnet Limited, Iddo Keinan, Xfone, Inc., Auracall Limited, Equitalk.co.uk Limited and Story Telecom Limited. (61)
10.135
 
General Release and Settlement Agreement dated December 28, 2009 between Xfone, Inc., and the selling shareholders of NTS Communications, Inc. (62)
10.136
 
Agreement dated January 29, 2010 by and between Xfone, Inc., Abraham Keinan, and AMIT K Limited. (63)
10.137
 
Agreement dated January 29, 2010 by and between Xfone, Inc. and Abraham Keinan. (63)
10.138
 
Agreement dated January 29, 2010 by and between Abraham Keinan, Guy Nissenson and Campbeltown Business Ltd. (63)
10.139
 
Securities Purchase Agreement dated effective as of March 23, 2010.  (64)
10.140
 
Form of Subscription Agreement dated as of March 23, 2010. (64)
 
 
37

 
 
10.141
 
Contract dated May 14, 2010 by and between Xfone, Inc., Newcall Ltd., Margo Pharma, Ltd., and Marathon Telecom Ltd. (English translation) (65)
10.142
 
Employment Agreement entered into on June 30, 2010 between Xfone, Inc. and Guy Nissenson (Free translation from Hebrew) (66)
10.143
 
First Amendment to Consulting Agreement dated June 30, 2010 between Xfone, Inc. and Guy Nissenson (66)
10.144
 
Severance Agreement entered into on September 20, 2010 between Xfone, Inc. and Guy Nissenson. (67)
10.145
 
Third Amendment to Financial Services and Business Development Consulting Agreement dated December 27, 2010, by and between Xfone, Inc. and Dionysos Investments (1999) Ltd. (69)
10.146
 
First Amendment to Senior Promissory Note, dated as of May 2, 2011. (71)
10.147
 
Term Loan, Guarantee and Security Agreement dated October 6, 2011. (72)
10.148
 
Employment and Severance Agreement dated March 6, 2012 between NTS, Inc., NTS Communications, Inc. and Guy Nissenson. (74)
10.149
 
Amendment No. 1 to Term Loan, Guarantee and Security Agreement dated June 22, 2012. (76)
10.150
 
Amendment No. 2 to the Term Loan, Guarantee and Security Agreement dated August 9, 2012.*
16.2
 
Letter dated June 1, 2009 from Stark Winter Schenkein & Co., LLP to the Securities and Exchange Commission. (58)
21.2
 
List of Subsidiaries (amended as of March 2012). (75)
31.1
 
Certification pursuant to section 302 of the Sarbanes - Oxley Act of 2002.*
31.2
 
Certification pursuant to section 302 of the Sarbanes - Oxley Act of 2002.*
32.1
 
Certification pursuant to section 906 of the Sarbanes - Oxley Act of 2002.*
32.2
 
Certification pursuant to section 906 of the Sarbanes - Oxley Act of 2002.*
*Denotes exhibits filed herewith.
 
(1)
Denotes previously filed exhibits: filed on August 10, 2001 with Xfone, Inc.’s SB-2 Registration Statement.
(2)
Denotes previously filed exhibits: filed on October 16, 2001 with Xfone, Inc.’s SB-2/Amendment 1 Registration Statement.
(5)
Denotes previously filed exhibit: filed on March 3, 2003 with Xfone, Inc.’s SB-2/Post Effective Amendment 2 Registration Statement.
(6)
Denotes previously filed exhibit: filed on April 15, 2004 with Xfone’s, Inc. SB-2 Amendment 1 Registration Statement.
(7)
Denotes previously filed exhibit: filed on June 1, 2004 with Xfone, Inc.’s Form 8-K.
(8)
Denotes previously filed exhibit: filed on June 7, 2004 with Xfone, Inc.’s SB-2/Amendment 2 Registration Statement.
(9)
Denotes previously filed exhibit: filed on August 11, 2004 with Xfone’s, Inc. SB-2 Amendment 3 Registration Statement.
(10)
Denotes previously filed exhibit: filed on September 13, 2004 with Xfone’s, Inc. SB-2 Amendment 4 Registration Statement.
(11)
Denotes previously filed exhibits: filed on October 4, 2004 with Xfone, Inc.’s Form 8-K
(12)
Denotes previously filed exhibits: filed on November 29, 2004 with Xfone, Inc.’s Form 8-K.
(13)
Denotes previously filed exhibits; filed on March 31, 2005 with Xfone, Inc.’s Form 10-KSB.
(14)
Denotes previously filed exhibit: filed on August 22, 2005 with Xfone, Inc.’s Form 8-K.
(15)
Denotes previously filed exhibit: filed on August 31, 2005 with Xfone, Inc.’s Form 8-K.
 
 
38

 
 
(16)
Denotes previously filed exhibits: filed on October 3, 2005 with Xfone, Inc.’s Form 8-K.
(17)
Denotes previously filed exhibits: filed on October 11, 2005 with Xfone, Inc.’s Form 8-K/A #1.
(18)
Denotes previously filed exhibits: filed on November 29, 2005 with Xfone, Inc.’s Form 8-K.
(19)
Denotes previously filed exhibit: filed on January 23, 2006 with Xfone, Inc.’s Form 8-K/A #3.
(21)
Denotes previously filed exhibit: filed on January 31, 2006 with Xfone, Inc.’s Form 8-K.
(23)
Denotes previously filed exhibit: filed on May 16, 2006 with Xfone, Inc.’s Form 8-K.
(24)
Denotes previously filed exhibit: filed on May 30, 2006 with Xfone, Inc.’s Form 8-K.
(25)
Denotes previously filed exhibits: filed on June 20, 2006 with Xfone, Inc.’s Form 8-K.
(27)
Denotes previously filed exhibits: filed on July 31, 2006 with Xfone, Inc.’s Form 8-K. 
(28)
Denotes previously filed exhibits: filed on November 14, 2006 with Xfone, Inc.’s Form 10-QSB. 
(29)
Denotes previously filed exhibit: filed on November 22, 2006 with Xfone, Inc.’s Form 8-K. 
(31)
Denotes previously filed exhibit: filed on December 28, 2006 with Xfone, Inc.’s Form 8-K. 
(33)
Denotes previously filed exhibits: filed on February 8, 2007 with Xfone, Inc.’s Form 8-K. 
(34)
Denotes previously filed exhibits; filed on March 30, 2007 with Xfone, Inc.’s Form 10-KSB. 
(35)
Denotes previously filed exhibits: filed on May 31, 2007 with Xfone, Inc.’s Form 8-K. 
(36)
Denotes previously filed exhibits: filed on August 15, 2007 with Xfone, Inc.’s Form 8-K. 
(37)
Denotes previously filed exhibits: filed on August 22, 2007 with Xfone, Inc.’s Form 8-K. 
(38)
Denotes previously filed exhibit: filed on August 27, 2007 with Xfone, Inc.’s Form 8-K. 
(39)
Denotes previously filed exhibit: filed on October 23, 2007 with Xfone, Inc.’s Form 8-K. 
(41)
Denotes previously filed exhibit: filed on November 5, 2007 with Xfone, Inc.’s Form 8-K. 
(42)
Denotes previously filed exhibits: filed on December 14, 2007 with Xfone, Inc.’s Form 8-K. 
(43)
Denotes previously filed exhibit: filed on February 14, 2008 with Xfone, Inc.’s Form 8-K. 
(44)
Denotes previously filed exhibits: filed on February 26, 2008 with Xfone, Inc.’s Form 8-K. 
(45)
Denotes previously filed exhibits: filed on March 6, 2008 with Xfone, Inc.’s Form 8-K. 
(46)
Denotes previously filed exhibit: filed on March 17, 2008 with Xfone, Inc.’s Form 8-K. 
(47)
Denotes previously filed exhibits: filed on March 25 with Xfone, Inc.’s Form 8-K. 
(48)
Denotes previously filed exhibit: filed on May 1, 2008 with Xfone, Inc.‘s Form 8-K. 
(49)
Denotes previously filed exhibit: filed on July 1, 2008 with Xfone, Inc.‘s Form 8-K. 
 
 
39

 
 
(51)
Denotes previously filed exhibit: filed on October 28, 2008 with Xfone, Inc.‘s Form 8-K. 
(52)
Denotes previously filed exhibit: filed on November 4, 2008 with Xfone, Inc.‘s Form 8-K. 
(54)
Denotes previously filed exhibit: filed on December 24, 2008 with Xfone, Inc.‘s Form 8-K. 
(55)
Denotes previously filed exhibit: filed on January 16, 2009 with Xfone, Inc.‘s Form 8-K. 
(56)
Denotes previously filed exhibit: filed on April 1, 2010 with Xfone, Inc.‘s Form 10-K. 
(58)
Denotes previously filed exhibit: filed on June 3, 2009 with Xfone, Inc.‘s Form 8-K/A. 
(59)
Denotes previously filed exhibit: filed on July 1, 2009 with Xfone, Inc.‘s Form 8-K. 
(60)
Denotes previously filed exhibit: filed on November 30, 2009 with Xfone, Inc.‘s Form 8-K. 
(61)
Denotes previously filed exhibit: filed on December 11, 2009 with Xfone, Inc.‘s Form 8-K. 
(62)
Denotes previously filed exhibit: filed on December 29, 2009 with Xfone, Inc.‘s Form 8-K. 
(63)
Denotes previously filed exhibits: filed on January 29, 2010 with Xfone, Inc.‘s Form 8-K. 
(64)
Denotes previously filed exhibits: filed on March 23, 2010 with Xfone, Inc.‘s Form 8-K. 
(65)
Denotes previously filed exhibits: filed on June 1, 2010 with Xfone, Inc.’s Form 8-K. 
(66)
Denotes previously filed exhibits: filed on June 30, 2010 with Xfone, Inc.’s Form 8-K. 
(67)
Denotes previously filed exhibits: filed on September 20, 2010 with Xfone, Inc.’s Form 8-K. 
 
(68)
Denotes previously filed exhibit: filed on November 18, 2010 with Xfone, Inc.’s Form 8-K. 
 
(69)
Denotes previously filed exhibit: filed on December 27, 2010 with Xfone, Inc.’s Form 8-K. 
 
(71)
Denotes previously filed exhibit: filed on May 2, 2011 with Xfone, Inc.’s Form 8-K. 
 
(72)
Denotes previously filed exhibit: filed on October 6, 2011 with Xfone, Inc.’s Form 8-K.
 
(73)
Denotes previously filed exhibit: filed on February 1, 2012 with Xfone, Inc.’s Form 8-K.
 
(74)
Denotes previously filed exhibit: filed on March 6, 2012 with NTS, Inc.’s Form 8-K.
 
(75)
Denotes previously filed exhibits: filed on March 30, 2012 with NTS, Inc.’s Form 10-K.
 
(76)
Denotes previously filed exhibit: filed on June 25, 2012 with NTS, Inc.’s Form 8-K.
 

 
40

 
 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
 
NTS, INC.
 
       
Date: August 13, 2012
By:
/s/ Guy Nissenson
 
   
Guy Nissenson
 
   
President, Chief Executive Officer
and Chairman of the Board
 
   
(principal executive officer)
 

 
Date: August 13, 2012
By:
/s/ Niv Krikov
 
   
Niv Krikov
 
   
Principal Accounting Officer, Treasurer,
Chief Financial Officer and Director
(principal accounting and financial officer)
 

 
41

 
 
EXHIBIT INDEX
 
Exhibit Number
 
Description
2.
 
Agreement and plan of reorganization dated September 20, 2000, between the Company and Swiftnet Limited. (1)
3.1
 
Articles of Incorporation of the Company.(1)
3.1.1
 
Certificate of Amendment to the Articles of Incorporation of the Company, dated January 18, 2007. (56)
3.1.2
 
Certificate of Amendment to the Articles of Incorporation of the Company, dated January 25, 2012 (73)
3.6
 
Bylaws of Xfone USA, Inc. (7)
3.12
 
Reamended and Restated Bylaws of Xfone, Inc. dated November 18, 2010. (68)
4.
 
Specimen Stock Certificate and Specimen Warrant Certificate. (75)
4.1-4.8
 
Forms related to the Rights Offering of 2011.
10.1
 
Agreement dated May 11, 2000, between Swiftnet Limited and Guy Nissenson.(1)
10.2
 
Employment Agreement dated January 1, 2000 with Bosmat Houston. (1)
10.3
 
Loan Agreement dated August 5, 2000, with Swiftnet Limited, Guy Nissenson, and Nissim Levy.(1)
10.4
 
Promissory Note dated September 29, 2000, between the Company and Abraham Keinan.(1)
10.5
 
Stock Purchase Agreement dated June 19, 2000, between Swiftnet Limited, Abraham Keinan, and Campbeltown Business Ltd. (1)
10.6
 
Consulting Agreement dated May 11, 2000 between Swiftnet Limited and Campbeltown Business Ltd.(1)
10.7
 
Agreement dated July 30, 2001, with Campbeltown Business Ltd.(1)
10.8
 
Contract dated June 20, 1998, with WorldCom International Ltd.(1)
10.9
 
Contract dated April 11, 2000, with VoiceNet Inc.(1)
10.10
 
Contract dated April 25, 2000, with InTouchUK.com Ltd.(1)
10.11
 
Letter of Understanding dated July 30, 2001, from Campbeltown Business Ltd. to the Company.(2)
10.12
 
Agreement dated April 6, 2000, between Adar International, Inc./Mr. Sidney J. Golub and Swiftnet Limited. (2)
10.13
 
Lease Agreement dated December 4, 1991, between Elmtree Investments Ltd. and Swiftnet Limited.(2)
10.14
 
Lease Agreement dated October 8, 2001, between Postwick Property Holdings Limited and Swiftnet Limited. (2)
10.15
 
Agreement dated September 30, 2002, between the Company, Swiftnet Limited., and Nir Davison.(5)
10.16
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Platinum Partners Value Arbitrage Fund LP, Countrywide Partners LLC and WEC Partners LLC. (6)
10.17
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Simon Langbart, Robert Langbart, Arik Ecker, Zwi Ecker, Michael Derman, Errol Derman, Yuval Haim Sobel, Zvi Sobel, Tenram Investment Ltd., Michael Zinn, Michael Weiss. (6)
10.18
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Southridge Partners LP and Southshore Capital Fund Ltd. (6)
10.19
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Crestview Capital Master LLC. (6)
10.20
 
As to Form: Shares and Warrant Purchase Agreement, Irrevocable Proxy, Warrant A, Warrant B and Registration Rights Agreement of Selling Shareholders Adam Breslawsky, Oded Levy, Michael Epstein, Steven Frank, Joshua Lobel, Joshua Kazan and The Oberon Group LLC. (6)
10.21
 
Newco (Auracall Limited) Formation Agreement.(6)
10.22
 
Agreement with ITXC Corporation.(6)
 
 
42

 
 
10.23
 
Agreement with Teleglobe International.(6)
10.23.1
 
Amendment to Agreement with Teleglobe International.(6)
10.24
 
Agreement with British Telecommunications.(6)
10.25
 
Agreement with Easyair Limited (OpenAir).(6)
10.26
 
Agreement with Worldnet.(6)
10.27
 
Agreement with Portfolio PR.(6)
10.28
 
Agreement with Stern and Company.(6)
10.29
 
Letter to the Company dated December 31, 2003, from Abraham Keinan.(6)
10.30
 
Agreement between Swiftnet Limited and Dan Kirschner.(8)
10.31
 
Agreement and Plan of Merger.(7)
10.32
 
Escrow Agreement.(7)
10.33
 
Release Agreement.(7)
10.34
 
Employment Agreement date March 10, 2005, between Xfone USA, Inc. and Wade Spooner.(7)
10.34.1
 
Separation Agreement and Release, dated August 15, 2008, between Xfone USA, Inc. and Wade Spooner. (56)
10.35
 
Employment Agreement date March 10, 2005, between Xfone USA, Inc. and Ted Parsons.(7)
10.35.1
 
Separation Agreement and Release, dated August 15, 2008, between Xfone USA, Inc. and Ted Parsons. (56)
10.36
 
First Amendment to Agreement and Plan of Merger (to acquire WS Telecom, Inc.).(11)
10.37
 
Finders Agreement with The Oberon Group, LLC.(11)
10.38
 
Agreement with The Oberon Group, LLC.(11)
10.39
 
Management Agreement between WS Telecom, Inc. and Xfone USA, Inc.(8)
10.40
 
Engagement Letter to Tommy R. Ferguson, Confidentiality Agreement, and Executive Inventions Agreement dated August 19, 2004. (11)
10.41
 
Voting Agreement dated September 28, 2004.(11)
10.42
 
Novation Agreement executed September 27, 2004.(11)
10.43
 
Novation Agreement executed September 28, 2004.(11)
10.44
 
Investment Agreement dated August 26, 2004, with Ilan Shoshani.(12)
10.44.1
 
Addendum and Clarification to the Investment Agreement with Ilan Shoshani dated September 13, 2004. (12)
10.45
 
Agreement dated November 16, 2004, with Elite Financial Communications Group.(13)
10.46
 
Financial Services and Business Development Consulting Agreement dated November 18, 2004, with Dionysos Investments (1999) Ltd. (13)
10.47
 
Agreement and Plan of Merger to acquire I-55 Internet Services, Inc. dated August 18, 2005.(14)
10.48
 
Agreement and Plan of Merger to acquire I-55 Telecommunications, LLC dated August 26, 2005.(15)
10.49
 
Securities Purchase Agreement, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
10.50
 
Secured Convertible Term Note, dated September 27, 2005, by the Company in favor of Laurus Master Fund, Ltd.; Adjustment Provision Waiver Agreement, dated September 27, 2005, by and between the Company and Laurus Fund, Ltd. (16)
 
 
43

 
 
10.51
 
Common Stock Purchase Warrant, dated September 27, 2005, by the Company in favor of Laurus Master Fund, Ltd. (16)
10.52
 
Registration Rights Agreement, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
10.53
 
Master Security Agreement, dated September 27, 2005, by and between the Company, Xfone USA, Inc., eXpeTel Communications, Inc., Gulf Coast Utilities, Inc., and Laurus Master Fund, Ltd. (16)
10.54
 
Stock Pledge Agreement, dated September 27, 2005, by and between the Company, Xfone USA, Inc., and Laurus Master Fund, Ltd. (16)
10.55
 
Subsidiary Guarantee dated September 27, 2005, by Xfone USA, Inc., eXpeTel Communications, Inc. and Gulf Coast Utilities, Inc. in favor of Laurus Master Fund, Ltd. (16)
10.56
 
Funds Escrow Agreement, dated September 27, 2005, by and between the Company, Laurus Master Fund, Ltd. and Loeb & Loeb LLP; Disbursement Letter, dated September 27, 2005. (16)
10.57
 
Incremental Funding Side Letter, dated September 27, 2005, by and between the Company and Laurus Master Fund, Ltd. (16)
10.58
 
Securities Purchase Agreement dated September 28, 2005, by and between the Company and Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
10.59
 
Registration Rights Agreement, dated September 28, 2005, by and between the Company and Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
10.60
 
Common Stock Purchase Warrant, dated September 28, 2005, by the Company in favor of the Crestview Capital Mater, LLC, Burlingame Equity Investors, LP, Burlingame Equity Investors II, LP, Burlingame Equity Investors (Offshore), Ltd., and Mercantile Discount - Provident Funds. (16)
10.61
 
Escrow Agreement, dated September 28, 2005, by and between the Company, the Purchasers and Feldman Weinstein LLP. (16)
10.62
 
Management Agreement dated October 11, 2005.(17)
10.63
 
First Amendment to Agreement and Plan of Merger (to acquire I-55 Internet Services, Inc.), dated October 10, 2005. (17)
10.64
 
Letter Agreement with MCG Capital Corporation dated October 10, 2005.(17)
10.65
 
Securities Purchase Agreement, dated November 23, 2005, between the Company and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
10.66
 
Registration Rights Agreement, dated November 23, 2005, between the Company and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
10.67
 
Common Stock Purchase Warrant, dated November 23, 2005, by the Company in favor of Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
10.68
 
Escrow Agreement, dated November 23, 2005, between the Company, the Escrow Agent, and Mercantile Discount - Provident Funds, Hadar Insurance Company Ltd., The Israeli Phoenix Assurance Company Ltd. and Gaon Gemel Ltd. (18)
10.69
 
Management Agreement with I-55 Telecommunications, LLC dated October 12, 2005.(19)
10.70
 
Agreement - General Terms and Conditions with EBI Comm, Inc., dated January 1, 2006.(21)
10.71
 
Asset Purchase Agreement with Canufly.net, Inc., dated January 10, 2006.(21)
10.72
 
Stock Purchase Agreement dated May 10, 2006, by and among the Company, Story Telecom, Inc., Story Telecom Limited, Story Telecom (Ireland) Limited, Nir Davison, and Trecastle Holdings Limited. (23)
10.73
 
Agreement dated May 25, 2006, by and among the Company and the shareholders of Equitalk.co.uk Limited. (24)
10.74
 
Securities Purchase Agreement, dated June 19, 2006, by and between the Company and the Purchasers. (25)
10.75
 
Registration Rights Agreement, dated June 19, 2006, by and between the Company and the Purchasers. (25)
10.76
 
Common Stock Purchase Warrant, dated June 19, 2006, by the Company in favor of the Purchasers.(25)
10.77
 
Escrow Agreement, dated June 19, 2006, by and between the Company, the Escrow Agent, and the Purchasers. (25)
10.78
 
Form of Indemnification Agreement between the Company and its Directors and Officers.(27)
 
 
44

 
 
10.79
 
Agreement to Purchase Promissory Note dated October 31, 2005, with Randall Wade James Tricou.(27)
10.80
 
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Tricou Construction. (27)
10.81
 
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Bon Aire Estates. (27)
10.82
 
Agreement to Purchase Promissory Note dated October 31, 2005, with Rene Tricou - Bon Aire Utility. (27)
10.83
 
Agreement to Purchase Promissory Note dated February 3, 2006, with Danny Acosta.(27)
10.84
 
Letter Agreement dated November 15, 2005, with Oberon Securities, LLC.(27)
10.85
 
Letter Agreement dated June 15, 2006, with Oberon Securities, LLC.(27)
10.86
 
Second Amendment to Agreement and Plan of Merger (to acquire WS Telecom, Inc.), dated June 28, 2006. (27)
10.87
 
General Contract for Services dated January 1, 2005, by and between the Company and Swiftnet Limited. (27)
10.88
 
Service Agreement dated December 6, 2005, by and between the Company and Elite Financial Communications Group, LLC. (27)
10.89
 
Agreement for Market Making in Securities dated July 31, 2006, by and between the Company and Excellence Nessuah Stock Exchange Services Ltd. (27)
10.90
 
Shareholders Loan Agreement, dated September 27, 2006, by and between Auracall Limited, Swiftnet Limited, and Dan Kirschner. (28)
10.91
 
Service Agreement, dated November 7, 2006, by and between the Company and Institutional Marketing Services, Inc. (28)
10.92
 
Consultancy Agreement, dated November 20, 2006, by and between the Company and Crestview Capital Partners, LLP. (29)
10.93
 
Agreement dated December 24, 2006, by and between the Company, Halman-Aldubi Provident Funds Ltd., and Halman-Aldubi Pension Funds Ltd. (translation from Hebrew). (31)
10.94
 
First Amendment to Financial Services and Business Development Consulting Agreement dated February 8, 2007, by and between the Company and Dionysos Investments (1999) Ltd. (33)
10.95
 
Agreement dated February 8, 2007, by and between the Company, Swiftnet Limited, Campbeltown Business, Ltd., and Mr. Abraham Keinan. (33)
10.96
 
First Amendment to General Contract for Services, dated March 14, 2007, by and between the Company and Swiftnet Limited. (34)
10.97
 
Employment Agreement, dated March 28, 2007, between Swiftnet Limited and Abraham Keinan.(34)
10.98
 
Consulting Agreement, dated March 28, 2007, between the Company and Abraham Keinan. (34)
10.99
 
Employment Agreement, dated March 28, 2007, between Swiftnet Limited and Guy Nissenson.(34)
10.100
 
Consulting Agreement, dated March 28, 2007, between the Company and Guy Nissenson.(34)
10.101
 
Settlement Agreement and Release dated May 31, 2007, by and among Embarq Logistics, Inc, Xfone USA, Inc. and the Company. (35)
10.102
 
Promissory Note dated May 31, 2007, by Xfone USA, Inc.(35)
10.103
 
Parent Guarantee dated as of May 31, 2007 by the Company in favor of Embarq Logistics, Inc.(35)
10.104
 
Share Purchase Agreement dated August 15, 2007, by and between Dan Kirschner, as Seller, Swiftnet Limited, as Buyer, and Xfone, Inc. (36)
10.105
 
Inter-Company Loan Agreement dated August 15, 2007, by and between Auracall Limited, as Lender, and Swiftnet Limited, as Borrower. (36)
10.106
 
Stock Purchase Agreement dated August 22, 2007, by and among the Company, NTS Communications, Inc., and the Shareholders of NTS Communications, Inc. (37)
10.107
 
Letter of Joint Venture dated June 15, 2007, by and among the Company and NTS Holdings, Inc.(37)
10.107.1
 
Form of Free Cash Flow Participation Agreement to be Entered into between the Company and NTS Holdings, Inc. Upon Consummation of the Acquisition. (37)
10.107.2
 
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Barbara Baldwin upon Consummation of the Acquisition. (37)
10.107.3
 
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Jerry Hoover upon Consummation of the Acquisition. (37)
10.107.4
 
Form of Employment Agreement to be entered into between NTS Communications, Inc. and Brad Worthington upon Consummation of the Acquisition. (37)
10.108
 
Employment Contract signed on August 26, 2007, by and between the Company’s Israeli based Subsidiary Xfone 018 ltd. and Roni Haliva. (38)
10.109
 
Subscription Agreement for the Purchase of Shares of Common Stock of the Company Dated October 23, 2007. (39)
10.110
 
Subscription Agreement for the Purchase of Shares of Common Stock of the Company Dated November 1, 2007. (41)
 
 
45

 
 
10.111
 
Form of Subscription Agreement for the Purchase of Units Consisting of Two Shares of Common Stock and One Common Stock Purchase Warrant. (42)
10.112
 
Form of Common Stock Purchase Warrant.(42)
10.113
 
First Amendment to Stock Purchase Agreement.(43)
10.114.1
 
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Barbara Baldwin. (44)
10.114.2
 
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Jerry Hoover. (44)
10.114.3
 
Employment agreement dated as of February 26, 2008, by and among NTS Communications, Inc. and Brad Worthington (44)
10.115
 
Free cash flow participation agreement dated as of February 26, 2008, by and among Xfone, Inc. and NTS Holdings, Inc. (44)
10.116
 
Escrow agreement dated as of February 26, 2008, by and among Xfone, Inc., Chris Chelette, Robert Healea and Kevin Buxkemper the NTS shareholders representatives, and Trustmark National Bank, as Escrow Agent. (44)
10.117
 
Release, effective as of February 26, 2008, entered into by each of Barbara Baldwin, Jerry Hoover and Brad Worthington (44)
10.118
 
Noncompetition, nondisclosure and nonsolicitation agreement dated as of February 26, 2008, by and among Xfone, Inc., Telephone Electronics Corporation, Joseph D. Fail, Chris Chelette, Robert Healea, Joey Garner, and Walter Frank. (44)
10.119
 
Second amendment to stock purchase agreement entered into by each of February 26, 2008 by and among Xfone, Inc., NTS Communications, Inc. and Chris Chelette, Robert Healea and Kevin Buxkemper, as the NTS shareholders representatives. (44)
10.120
 
Modification of Financial Consulting Agreement between Xfone, Inc. and Oberon Securities, LLC in connection with NTS Communications Transaction. (45)
10.121
 
Fees Due to Oberon Securities, LLC from Xfone, Inc. in connection with services provided in conjunction with the acquisition of NTS Communications, Inc. (45)
10.122
 
Agreement of Principles dated March 17, 2008 by and between Xfone 018 Ltd. and Tiv Taam Holdings 1 Ltd. (Free Translation from Hebrew). (46)
10.123
 
Compromise Agreement dated March 25, 2008, between Xfone, Inc., Story Telecom, Inc., Story Telecom Limited, Trecastle Holdings Limited and Nir Davison. (47)
10.124
 
Securities Purchase Agreement dated March 25, 2008, between Xfone, Inc., Trecastle Holdings Limited and Nir Davison. (47)
10.125
 
Third Amendment to Stock Purchase Agreement entered into as of April 25, 2008 by and among Chris Chelette, Robert Healea and Kevin Buxkemper, as Sellers’ Representative, NTS Communications, Inc. and Xfone, Inc. (48)
10.126
 
Irrevocable Option Agreement dated as of July 1, 2008 by and between Abraham Keinan and Guy Nissenson (49)
10.127
 
Indenture, entered into on December 13, 2007, as amended and restated on October 27, 2008, between Xfone, Inc. and Ziv Haft Trusts Company Ltd. (free translation from Hebrew). (51)
10.128
 
Form of warrant (free translation from Hebrew). (51)
10.129
 
Underwriting Agreement between Xfone, Inc., Excellence Nessuah Underwriting (1993) Ltd. and The First International & Co. - Underwriting and Investments Ltd., dated November 2, 2008 (free translation from Hebrew). (52)
10.130
 
Market Making Agreement dated December 24, 2008, by and between Xfone, Inc. and Harel Finance Trade & Securities Ltd. (Free translation from Hebrew) (54)
10.131
 
Second Amendment to Financial Services and Business Development Consulting Agreement dated January 15, 2009, by and between Xfone, Inc. and Dionysos Investments (1999) Ltd. (55)
10.132
 
Employment Agreement between NTS Communications, Inc. and Niv Krikov dated July 1, 2009. (59)
10.133
 
Agreement dated November 20, 2009 between Xfone, Inc., David Sela and Blokshtil Ltd. (English translation). (60)
10.134
 
Loan Agreement dated as of December 10, 2009, between Swiftnet Limited, Iddo Keinan, Xfone, Inc., Auracall Limited, Equitalk.co.uk Limited and Story Telecom Limited. (61)
10.135
 
General Release and Settlement Agreement dated December 28, 2009 between Xfone, Inc., and the selling shareholders of NTS Communications, Inc. (62)
10.136
 
Agreement dated January 29, 2010 by and between Xfone, Inc., Abraham Keinan, and AMIT K Limited. (63)
10.137
 
Agreement dated January 29, 2010 by and between Xfone, Inc. and Abraham Keinan. (63)
10.138
 
Agreement dated January 29, 2010 by and between Abraham Keinan, Guy Nissenson and Campbeltown Business Ltd. (63)
10.139
 
Securities Purchase Agreement dated effective as of March 23, 2010.  (64)
10.140
 
Form of Subscription Agreement dated as of March 23, 2010. (64)
 
 
46

 
 
10.141
 
Contract dated May 14, 2010 by and between Xfone, Inc., Newcall Ltd., Margo Pharma, Ltd., and Marathon Telecom Ltd. (English translation) (65)
10.142
 
Employment Agreement entered into on June 30, 2010 between Xfone, Inc. and Guy Nissenson (Free translation from Hebrew) (66)
10.143
 
First Amendment to Consulting Agreement dated June 30, 2010 between Xfone, Inc. and Guy Nissenson (66)
10.144
 
Severance Agreement entered into on September 20, 2010 between Xfone, Inc. and Guy Nissenson. (67)
10.145
 
Third Amendment to Financial Services and Business Development Consulting Agreement dated December 27, 2010, by and between Xfone, Inc. and Dionysos Investments (1999) Ltd. (69)
10.146
 
First Amendment to Senior Promissory Note, dated as of May 2, 2011. (71)
10.147
 
Term Loan, Guarantee and Security Agreement dated October 6, 2011. (72)
10.148
 
Employment and Severance Agreement dated March 6, 2012 between NTS, Inc., NTS Communications, Inc. and Guy Nissenson. (74)
10.149
 
Amendment No. 1 to Term Loan, Guarantee and Security Agreement dated June 22, 2012. (76)
10.150
 
Amendment No. 2 to the Term Loan, Guarantee and Security Agreement dated August 9, 2012.*
16.2
 
Letter dated June 1, 2009 from Stark Winter Schenkein & Co., LLP to the Securities and Exchange Commission. (58)
21.2
 
List of Subsidiaries (amended as of March 2012). (75)
31.1
 
Certification pursuant to section 302 of the Sarbanes - Oxley Act of 2002.*
31.2
 
Certification pursuant to section 302 of the Sarbanes - Oxley Act of 2002.*
32.1
 
Certification pursuant to section 906 of the Sarbanes - Oxley Act of 2002.*
32.2
 
Certification pursuant to section 906 of the Sarbanes - Oxley Act of 2002.*
*Denotes exhibits filed herewith.
 
(1)
Denotes previously filed exhibits: filed on August 10, 2001 with Xfone, Inc.’s SB-2 Registration Statement.
(2)
Denotes previously filed exhibits: filed on October 16, 2001 with Xfone, Inc.’s SB-2/Amendment 1 Registration Statement.
(5)
Denotes previously filed exhibit: filed on March 3, 2003 with Xfone, Inc.’s SB-2/Post Effective Amendment 2 Registration Statement.
(6)
Denotes previously filed exhibit: filed on April 15, 2004 with Xfone’s, Inc. SB-2 Amendment 1 Registration Statement.
(7)
Denotes previously filed exhibit: filed on June 1, 2004 with Xfone, Inc.’s Form 8-K.
(8)
Denotes previously filed exhibit: filed on June 7, 2004 with Xfone, Inc.’s SB-2/Amendment 2 Registration Statement.
(9)
Denotes previously filed exhibit: filed on August 11, 2004 with Xfone’s, Inc. SB-2 Amendment 3 Registration Statement.
(10)
Denotes previously filed exhibit: filed on September 13, 2004 with Xfone’s, Inc. SB-2 Amendment 4 Registration Statement.
(11)
Denotes previously filed exhibits: filed on October 4, 2004 with Xfone, Inc.’s Form 8-K
(12)
Denotes previously filed exhibits: filed on November 29, 2004 with Xfone, Inc.’s Form 8-K.
(13)
Denotes previously filed exhibits; filed on March 31, 2005 with Xfone, Inc.’s Form 10-KSB.
(14)
Denotes previously filed exhibit: filed on August 22, 2005 with Xfone, Inc.’s Form 8-K.
(15)
Denotes previously filed exhibit: filed on August 31, 2005 with Xfone, Inc.’s Form 8-K.
 
 
47

 
 
(16)
Denotes previously filed exhibits: filed on October 3, 2005 with Xfone, Inc.’s Form 8-K.
(17)
Denotes previously filed exhibits: filed on October 11, 2005 with Xfone, Inc.’s Form 8-K/A #1.
(18)
Denotes previously filed exhibits: filed on November 29, 2005 with Xfone, Inc.’s Form 8-K.
(19)
Denotes previously filed exhibit: filed on January 23, 2006 with Xfone, Inc.’s Form 8-K/A #3.
(21)
Denotes previously filed exhibit: filed on January 31, 2006 with Xfone, Inc.’s Form 8-K.
(23)
Denotes previously filed exhibit: filed on May 16, 2006 with Xfone, Inc.’s Form 8-K.
(24)
Denotes previously filed exhibit: filed on May 30, 2006 with Xfone, Inc.’s Form 8-K.
(25)
Denotes previously filed exhibits: filed on June 20, 2006 with Xfone, Inc.’s Form 8-K.
(27)
Denotes previously filed exhibits: filed on July 31, 2006 with Xfone, Inc.’s Form 8-K. 
(28)
Denotes previously filed exhibits: filed on November 14, 2006 with Xfone, Inc.’s Form 10-QSB. 
(29)
Denotes previously filed exhibit: filed on November 22, 2006 with Xfone, Inc.’s Form 8-K. 
(31)
Denotes previously filed exhibit: filed on December 28, 2006 with Xfone, Inc.’s Form 8-K. 
(33)
Denotes previously filed exhibits: filed on February 8, 2007 with Xfone, Inc.’s Form 8-K. 
(34)
Denotes previously filed exhibits; filed on March 30, 2007 with Xfone, Inc.’s Form 10-KSB. 
(35)
Denotes previously filed exhibits: filed on May 31, 2007 with Xfone, Inc.’s Form 8-K. 
(36)
Denotes previously filed exhibits: filed on August 15, 2007 with Xfone, Inc.’s Form 8-K. 
(37)
Denotes previously filed exhibits: filed on August 22, 2007 with Xfone, Inc.’s Form 8-K. 
(38)
Denotes previously filed exhibit: filed on August 27, 2007 with Xfone, Inc.’s Form 8-K. 
(39)
Denotes previously filed exhibit: filed on October 23, 2007 with Xfone, Inc.’s Form 8-K. 
(41)
Denotes previously filed exhibit: filed on November 5, 2007 with Xfone, Inc.’s Form 8-K. 
(42)
Denotes previously filed exhibits: filed on December 14, 2007 with Xfone, Inc.’s Form 8-K. 
(43)
Denotes previously filed exhibit: filed on February 14, 2008 with Xfone, Inc.’s Form 8-K. 
(44)
Denotes previously filed exhibits: filed on February 26, 2008 with Xfone, Inc.’s Form 8-K. 
(45)
Denotes previously filed exhibits: filed on March 6, 2008 with Xfone, Inc.’s Form 8-K. 
(46)
Denotes previously filed exhibit: filed on March 17, 2008 with Xfone, Inc.’s Form 8-K. 
(47)
Denotes previously filed exhibits: filed on March 25 with Xfone, Inc.’s Form 8-K. 
(48)
Denotes previously filed exhibit: filed on May 1, 2008 with Xfone, Inc.‘s Form 8-K. 
(49)
Denotes previously filed exhibit: filed on July 1, 2008 with Xfone, Inc.‘s Form 8-K. 
 
 
48