ex10109.htm


    Exhibit
      10.109

     

    SUBSCRIPTION
      AGREEMENT


     

    FOR
      THE


     

    PURCHASE
      OF SHARES OF COMMON STOCK OF

     

    XFONE,
      INC.

     

    October
      23, 2007

    
       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    XFONE,
      INC.

    


    SUBSCRIPTION
      AGREEMENT FOR THE PURCHASE OF SHARES OF COMMON STOCK

    


    XFONE,
      INC., a Nevada corporation (the “Company”) is offering (this
“Offering”) for sale to Gagnon Securities, Inc. (the
      “Investor”) to an aggregate of  1,000,000 shares of
      its common stock, par value $0.001 per share (the “Common
      Stock”) at $3.00 per share.  This Offering is made by the
      Company, acting without a placement agent, pursuant to the Registration
      Statement File No.: 333-143618 declared effective by the U.S. Securities and
      Exchange Commission (the “Commission”) on August 6, 2007 (the “Registration
      Statement”) and this subscription agreement (this
“Agreement”).

     

    WHEREAS,
      the Company filed the Registration Statement to sell up to 2,000,000
      shares of Common Stock on a best efforts basis and the Registration Statement
      was declared effective  by the Commission; and

     

    WHEREAS,
      the Company is offering for sale to the Investor an aggregate of 1,000,000
      shares of its Common Stock on the terms agreed to herein.

     

    NOW,
      THEREFORE, IT IS HEREBY AGREED:


    Purchase
      of Shares

     

    (a)           The
      undersigned investor (the “Investor”) agrees to purchase at the
      Closing (as defined herein) and the Company agrees to sell and issue at the
      Closing 1,000,000 Shares of Common Stock, at a price of $3.00 per share (the
      “Shares”), for a total subscription amount of $3,000,000 (the
“Subscription Amount”).

     

    (b)           The
      Investor and the Company agree that the Subscription Amount shall be paid by
      or
      on behalf of the Investor by wire transfer to the following account (the “Escrow
      Account”) wherein the Subscription Amount will be held until the approval by the
      American Stock Exchange (“AMEX”) and the Tel Aviv Stock Exchange (“TASE”) is
      obtained and until the Company’s transfer agent has confirmed that the shares
      are available for issuance to the Investor via the DWAC system, at which time
      the Subscription Amount will be released to the Company (the
“Closing”).

     

    Gersten
      Savage LLP

    600
      Lexington Avenue

    New
      York, NY 10022

     

                                                      
      

                                                      
      

                                                      


                                                        
        

                                                        


    

    
      
        
        

      

      
        -i-

        
          

        

      

      
        
        

      

    

     

    Subscription
      Procedures

     

    (a)           To
      subscribe, the Investor must:

     

    
      	
               

            	
              (i)

            	
              complete
                and sign this Agreement;

            


    

     

    
      	
               

            	
              (ii)

            	
              complete
                and sign the accompanying Confidential Prospective Purchaser Questionnaire
                (this Agreement and the Registration Statement are collectively referred
                to herein as the “Offering
                Documents”);

            


    

     

    
      	
               

            	
              (iii)

            	
              return
                the completed and signed Offering Documents on behalf of the Investor
                to
                the following address:

            


    

     

    Gersten
      Savage LLP

    600
      Lexington Avenue, 9th Floor

    New
      York,
      NY 10022-6018

    Attn:  Arthur
      S. Marcus, Esq.

     

    Prospective
      Investors should retain their own professional advisors to review and evaluate
      the economic, tax, and other consequences of an investment in the
      Company.

     

    THE
      COMMISSION HAS NOT PASSED UPON THE ACCURACY OR ADEQUACY OF THE OFFERING
      DOCUMENTS. NO STATE SECURITIES LAW ADMINISTRATOR HAS PASSED ON OR ENDORSED
      THE
      MERITS OF THIS OFFERING OR THE ACCURACY OR THE ADEQUACY OF THE OFFERING
      DOCUMENTS. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.

     

    IT
      IS INTENDED THAT THE SECURITIES OFFERED HEREBY WILL BE MADE AVAILABLE TO
      ACCREDITED INVESTORS, AS DEFINED IN REGULATION D AND RULE 501 PROMULGATED UNDER
      THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”).

     

    THE
      SECURITIES OFFERED HEREBY SHOULD BE CONSIDERED ONLY BY PERSONS WHO CAN AFFORD
      TO
      SUSTAIN A LOSS OF THEIR ENTIRE INVESTMENT. INVESTORS WILL BE REQUIRED TO
      REPRESENT THAT THEY ARE FAMILIAR WITH AND UNDERSTAND THE TERMS OF THIS
      OFFERING.

     

    THE
      INVESTOR, BY ACCEPTING DELIVERY OF THE OFFERING DOCUMENTS, AGREES TO RETURN
      THE
      OFFERING DOCUMENTS AND ALL ACCOMPANYING OR RELATED DOCUMENTS TO THE COMPANY
      UPON
      REQUEST IF THE INVESTOR DOES NOT AGREE TO PURCHASE ANY OF THE SECURITIES OFFERED
      HEREBY.

     

    
      
        
        

      

      
        -ii-

        
          

        

      

      
        
        

      

    

    NASAA
      UNIFORM LEGEND

     

    IN
      MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION
      OF
      THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
      INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
      SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
      AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
      DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
      OFFENSE.

     

    
      
        
        

      

      
        -iii-

        
          

        

      

      
        
        

      

    

    XFONE,
      INC.

    


    SUBSCRIPTION
      AGREEMENT FOR THE PURCHASE OF

     

    SHARES
      OF COMMON STOCK

     

    


    1.           Unless
      terminated earlier by the Company, in its sole discretion, this Offering is
      scheduled to terminate on or about October 31, 2007, 5:00 p.m., New York time
      (the “Offering Period”).  The issuances of the Shares
      is subject to the approval of the Tel Aviv Stock Exchange and the American
      Stock
      Exchange where the Company’s common stock is listed.

     

    2.           For
      additional information regarding the Company, the Investors are encouraged
      to
      review the Company’s Annual Report on Form 10-KSB for the period ending December
      31, 2006, filed with the Commission on March 30, 2007, together with an
      amendment thereto on Form 10-KSB/A filed with the Commission on July 30, 2007,
      and the Company’s Quarterly Report on Form 10-QSB for the period ending June 30,
      2007, filed with the Commission on August 14, 2007, along with the Company’s
      periodic reports and other information incorporated by reference therein and
      the
      Registration Statement (collectively referred to herein as the “Exchange
      Filings”) .

     

    3.           The
      Company hereby makes the following representations, warranties and covenants
      to
      the Investors:

     

    a.           The
      Company has the requisite corporate power and authority to enter into and to
      consummate the transactions contemplated by this Agreement and otherwise to
      carry out its obligations hereunder.

     

    b.           The
      execution and delivery of this Agreement by the Company and the consummation
      by
      it of the transactions contemplated hereunder have been duly authorized by
      all
      necessary corporate action on the part of the Company.

     

    c.           This
      Agreement has been duly executed by the Company and, when delivered in
      accordance with the terms hereof, will constitute the valid and binding
      obligation of the Company enforceable against the Company in accordance with
      its
      terms, except as may be limited by any bankruptcy, insolvency, reorganization,
      moratorium, fraudulent conveyance or other similar laws affecting the
      enforcement of creditors’ and contracting parties’ rights generally or by
      general principles of equity (regardless of whether such enforceability is
      considered in a proceeding in equity or at law).

     

    4.           Each
      Investor hereby makes the following representations, warranties and covenants
      to
      the Company:

     

    a.           Each
      Investor has carefully read the Offering Documents and the Exchange Filings,
      all
      of which the Investor acknowledges have been provided to it or have been
      available to it.  Each Investor has been given the opportunity to ask
      questions of, and receive answers from the Company concerning the terms and
      conditions of this Offering and the Offering Documents and to obtain such
      additional written information, to the extent the Company possesses such
      information or can acquire it without unreasonable effort or expense, necessary
      to verify the accuracy of the same as the Investor desires in order to evaluate
      this investment.  Each Investor further acknowledges that the Investor
      fully understands the Offering Documents, and the Investor has had the
      opportunity to discuss any questions regarding any of the Offering Documents
      with the Investor’s counsel or other advisor.  Notwithstanding the
      foregoing, the only information upon which the Investor has relied is that
      set
      forth in the Offering Documents and the Exchange Filings, and the Investor’s own
      independent investigation.  Each Investor acknowledges that the
      Investor has received no representations or warranties from the Company or
      its
      employees, directors, officers, or agents in making this investment decision
      other than as set forth in the Offering Documents and the Exchange
      Filings.

     

    
      
        
        

      

      
        -iv-

        
          

        

      

      
        
        

      

    

    b.           Each
      Investor is aware that the purchase of the Shares is a speculative investment
      involving a high degree of risk and that there is no guarantee that the Investor
      will realize any gain from this investment, and that the Investor could lose
      the
      total amount of the Investor's investment.

     

    c.           Each
      Investor understands that no federal or state agency has made any finding or
      determination regarding the fairness of this Offering, or any recommendation
      or
      endorsement of this Offering.

     

    d.           Although,
      the Investors are affiliates of a registered broker-dealer they are purchasing
      the Shares for their own account, with the intention of holding the Shares,
      with
      no present intention of dividing or allowing others to participate in this
      investment or of reselling or otherwise participating, directly or indirectly,
      in a distribution of the Shares.

     

    e.           Each
      Investor represents that the Investor, if an individual, has adequate means
      of
      providing for his or her current needs and personal and family contingencies
      and
      has no need for liquidity in this investment in the Shares.  The
      Investor has no reason to anticipate any material change in his or her personal
      financial condition for the foreseeable future.

     

    f.           Each
      Investor is financially able to bear the economic risk of this investment,
      including the ability to hold the Shares indefinitely or to afford a complete
      loss of the Investor’s investment.

     

    g.           Each
      Investor represents that each Investor's overall commitment to this investment
      is not disproportionate to the Investor's net worth, and the Investor's
      investment in the Shares will not cause such overall commitment to become
      excessive.   The Investor will not pledge, transfer, or assign
      this Agreement.

     

    h.           Each
      Investor represents that the funds provided for this investment are either
      separate property of the Investor, community property over which the Investor
      has the right of control, or are otherwise funds as to which the Investor has
      the sole right of management.

     

    
      
        
        

      

      
        -v-

        
          

        

      

      
        
        

      

    

    i.           FOR
      PARTNERSHIPS, CORPORATIONS, TRUSTS, OR OTHER ENTITIES
      ONLY:  If the Investor is a partnership, corporation, trust,
      or other entity, (i),  the Investor represents and warrants that it
      was not organized or reorganized for the specific purpose of acquiring the
      Shares, (ii) the Investor has the full power and authority to execute this
      Agreement on behalf of such entity and to make the representations and
      warranties made herein on its behalf, and (iii) this investment in the Company
      has been affirmatively authorized, if required, by the governing board of such
      entity and is not prohibited by the governing documents of the
      entity.

     

    j.           The
      address shown under the Investor's signature at the end of this Agreement is
      the
      Investor's principal residence if he or she is an individual, or its principal
      business address if a corporation or other entity.

     

    k.           Each
      Investor has such knowledge and experience in financial and business matters
      as
      to be capable of evaluating the merits and risks of an investment in the
      Shares.

     

    l.           Each
      Investor expressly acknowledges and agrees that the Company is relying upon
      the
      Investor's representations contained in the Offering Documents.

     

    m.           Each
      Investor acknowledges that the Investor understands the meaning and legal
      consequences of the representations and warranties which are contained in the
      Offering Documents and hereby agrees to indemnify, save and hold harmless the
      Company and its officers, directors and counsel, from and against any and all
      claims or actions arising out of a breach of any representation, warranty or
      acknowledgment of the Investor contained in any of the Offering
      Documents.  Such indemnification shall be deemed to include not only
      the specific liabilities or obligations with respect to which such indemnity
      is
      provided, but also all reasonable costs, expenses, counsel fees and expenses
      of
      settlement relating thereto, whether or not any such liability or obligation
      shall have been reduced to judgment.  In addition, the Investor's
      representations, warranties, and indemnification contained herein shall survive
      the Investor's sale of the Shares hereunder.  Each Investor
      specifically acknowledges that he has reviewed the Offering Documents, as well
      as the financial statements included in the Exchange Filings.

     

    5.           Except
      as otherwise specifically provided for hereunder, no party shall be deemed
      to
      have waived any of his, her, or its rights hereunder or under any other
      agreement, instrument, or papers signed by any of them with respect to the
      subject matter hereof unless such waiver is in writing and signed by the party
      waiving said right.  Except as otherwise specifically provided for
      hereunder, no delay or omission by any party in exercising any right with
      respect to the subject matter hereof shall operate as a waiver of such right
      or
      of any such other right.  A waiver on any one occasion with respect to
      the subject matter hereof shall not be construed as a bar to, or waiver of,
      any
      right or remedy on any future occasion.  All rights and remedies with
      respect to the subject matter hereof, whether evidenced hereby or by any other
      agreement, instrument, or paper, will be cumulative, and may be exercised
      separately or concurrently.

     

    
      
        
        

      

      
        -vi-

        
          

        

      

      
        
        

      

    

    6.           The
      parties have not made any representations or warranties with respect to the
      subject matter hereof not set forth herein, and this Agreement, together with
      any instruments executed simultaneously herewith, constitutes the entire
      agreement between them with respect to the subject matter hereof.  All
      understandings and agreements heretofore existing between the parties with
      respect to the subject matter hereof are merged in this Agreement and any such
      instrument, which alone fully and completely express their
      agreement.

     

    7.           This
      Agreement may not be changed, modified, extended, terminated, or discharged
      orally, but only by an agreement in writing, which is signed by the Company
      and
      the Investor.

     

    8.           The
      parties agree to execute any and all such other and further instruments and
      documents, and to take any and all such further actions reasonably required
      to
      effectuate this Agreement and the intent and purposes hereof.

     

    9.           If
      any provision or any portion of any provision of this Agreement or the
      application of any such provision or any portion thereof to any person or
      circumstance, shall be held invalid or unenforceable, the remaining portion
      of
      such provision and the remaining portion of such provision as is held invalid
      or
      unenforceable to persons or circumstances other than those as to which it is
      held invalid or unenforceable, shall not be affected thereby.

     

    10.           This
      Agreement shall be governed by and construed in accordance with the laws of
      the
      State of New York and the Investor hereby consents to the jurisdiction of the
      courts of the State of New York and/or the United States District Court for
      the
      Southern District of New York.

     

    [Remainder
      of page intentionally left blank.]

     

    
      
        
        

      

      
        -vii-

        
          

        

      

      
        
        

      

    

    


     

    ALL
      SUBSCRIBERS MUST COMPLETE A COPY OF THIS PAGE

     

    __________________________

    (Print
      Name of Subscriber)

     

    IN
      WITNESS WHEREOF, the Investor has executed this Agreement on this 23
      day of October, 2007.


     

    
      	
               

              Number
                of Shares:

            
	
               

              Purchase
                Price Per Share: $3.00

            
	
               

              Aggregate
                Common Stock Subscription Amount:

            


    

    


     

    Please
      indicate the form of ownership that you desire your Shares to be registered
      in.

     

    1.           |__|           Individual

     

    2.           |__|           Joint
      Tenants with Right of Survivorship

     

    3.           |__|           Community
      Property

     

    4.           |__|           Tenants
      in Common

     

    5.           |__|           Corporation/Partnership

     

    6.           |__|           IRA
      of________________

     

    7.           |__|           Trust

     

                          Date
      Opened ___________

     

    8.           |__|           As
      A Custodian For________________

     

    Under
      the
      Uniform Transfer to Minors Act of the

     

    State
      of ___________

     

    9.           |__|           
      Married with Separate

     

                              Property

     

    10.           |__|           Keogh  Plan
      ____________

     

    


    
      
        
        

      

      
        -viii-

        
          

        

      

      
        
        

      

    

     

    EXECUTION
      BY SUBSCRIBER WHO IS A NATURAL PERSON

     

    


                                                                                
      
Exact Name in Which Title is to be Held

    


    


                                                                                
      
(Signature)

    


    


                                                                                
      
Name (Please Print)

    


    


                                                                                
      
Title of Person Executing Agreement

    


    


                                                                                
      
Address:  Number and Street

    


    


                                                                                
      
City, State, Zip Code

    


    


                                                                                
      
Social Security Number

    


     

    Accepted
      this 23 day of October, 2007, on behalf of XFONE,
      INC.

     

    By:
      _____________________________

    Name:

    Title:

     

    


    
      
        
        

      

      
        -ix-

        
          

        

      

      
        
        

      

    

     

    EXECUTION
      BY SUBSCRIBER WHICH IS A CORPORATION, PARTNER, TRUST, ETC.

    
                                                                            
      

    Exact
      Name in Which Title is to be Held

     

                                                                                


     (Signature)

    


    


                                                                                
      
Name (Please Print)

    


    


                                                                                
      
Title of Person Executing Agreement

    


    


                                                                                
      
Address:  Number and Street

    


    


                                                                                
      
City, State, Zip Code

    


    


                                                                                
      
Tax Identification Number

    


    Accepted
      this 23 day of October, 2007 on behalf of XFONE,
      INC.

     

    


     

    By:
      ________________________

          Name:

          Title:

     

    
      
        
        

      

      
        -x-

        
          

        

      

      
        
        

      

    

    


    
      	
               

            	 


    

    CONFIDENTIAL
      PROSPECTIVE PURCHASER QUESTIONNAIRE

     

    THIS
      QUESTIONNAIRE IS TO BE COMPLETED BY EACH PERSON WHO DESIRES TO PURCHASE COMMON
      STOCK OF XFONE, INC. (THE” COMPANY”).  THIS MATERIAL DOES NOT
      CONSTITUTE AN OFFER TO SELL NOR IS IT A SOLICITATION OF AN OFFER TO BUY ANY
      SECURITIES. THE TERMS OF THE OFFERING WILL BE MADE SOLELY PURSUANT TO THE TERMS
      AND CONDITIONS OF THE SECURITIES PURCHASE AGREEMENT PROVIDED HEREWITH WHICH
      CONTAINS MATERIAL INFORMATION TO BE REVIEWED IN CONNECTION WITH ANY INVESTMENT
      DECISION.

     

    ACCREDITED
      INVESTOR STATUS

     

    Please
      check whether one or more of the following definitions of "Accredited Investor,"
      if any, applies to you.  If none of the following applies to you,
      please leave a blank.  Please sign in the indicated space below and
      indicate the amount of your investment and put you initials after the
      amount.

     

    
      	
                       (a)

            	
              A
                Bank as defined in Section 3(a)(2) of the Securities Act of 1933,
                as
                amended (the "1933 Act"), or any savings and loan association or
                other
                institution as defined in Section 3(a)(5)(A) of the 1933 Act whether
                acting in its individual or fiduciary capacity; any broker or dealer
                registered pursuant to Section 15 of the Securities Exchange Act
                of 1934,
                as amended (the "Exchange Act"); an insurance company as defined
                in
                Section 2(13) of the 1933 Act; an investment company registered under
                the
                Investment Company Act of 1940 or a business development company
                as
                defined in Section 2(a)(48) of that act; a Small Business Investment
                Company licensed by the U.S. Small Business Administration under
                Section
                301(c) or (d) of the Small Business Investment Act of 1958; any plan
                established and maintained by a state, or its political subdivisions,
                or
                any agency or instrumentality of a state or its political subdivisions
                for
                the benefit of its employees, if such plan has total assets in excess
                of
                $5,000,000; any employee benefit plan within the meaning of the Employee
                Retirement Income Security Act of 1974, if the investment decision
                is made
                by a plan fiduciary, as defined in Section 3(21) of such act, which
                is
                either a bank, savings and loan association, insurance company, or
                registered investment advisor, or if the employee benefit plan has
                total
                assets in excess of $5,000,000 or, if a self-directed plan, with
                investment decisions made solely by persons that are Accredited
                Investors.

            


    

     

    
      	
                       (b)

            	
              A
                Private Business Development Company as defined in Section 202(a)(22)
                of
                the Investment Advisers Act of
                1940.

            


    

     

    
      	
                     
                (c)

            	
              An
                organization described in Section 501(c)(3) of the Internal Revenue
                Code
                or corporation, Massachusetts or similar business trust, or partnership,
                not formed for the specific purpose of acquiring the securities offered,
                with total assets in excess of
                $5,000,000.

            


    

     

    
      	
                     
                (d)

            	
              A
                natural person whose individual net worth, or joint net worth with
                that
                person's spouse, at the time of purchase exceeds
                $1,000,000.

            


    

     

    
      	
                     
                (e)

            	
              A
                natural person who had an individual income in excess of $200,000
                in each
                of the two most recent years or joint income with that person's spouse
                in
                excess of $300,000 in each of those years and has a reasonable expectation
                of reaching the same income level in the current
                year.

            


    

     

    
      	
                     
                (f)

            	
              Any
                trust, with total assets in excess of $5,000,000, not formed for
                the
                specific purpose of acquiring the common stock, whose purchase is
                directed
                by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation
                D.

            


    

     

    
      	
                     
                (g)

            	
              Any
                entity in which all of the equity owners are Accredited
                Investors.

            


    

     

     

    
      
        	 	
                $           

              	 
	
                Investor’s
                  Signature

              	
                   Amount
                  of
                  Investment

              	
                Initials

              
	 	 	 
	
                (Please
                  insert name in which Securities will be

              	 	 
	
                held;
                  if held by a corporation, please sign below)

              	 	 
	 	 	 
	
                Corporate
                  Purchaser

              	 	 
	 	 	 
	
                By:           

              	 	 
	
                Name/Title

              	 	 


      

    

     

    
      
        
        

      

      
        -xi-