ex10101.htm


    
      Exhibit
        101

      SETTLEMENT
        AGREEMENT AND RELEASE

       

      This
        Settlement Agreement and Release (“Agreement”), is made and entered into as of
        May 31, 2007, by and among Embarq Logistics, Inc. (“Embarq”) (formerly known as
        Sprint North Supply Company), located at 600 New Century Parkway, Gardner,
        Kansas, and Xfone USA, Inc. (“Xfone”), located at 2506 Lakeland Drive, Jackson,
        Mississippi, and Xfone, Inc. (“Parent”), its parent company, located at 2506
        Lakeland Drive, Flowood, Mississippi. Where appropriate, Embarq and Xfone
        are
        referred to herein as the “Parties”.

       

      WHEREAS,
        Embarq and Xfone are parties to the following documents and
        agreements:  (1) a Credit Application dated August 24, 2005, submitted
        to Embarq by Xfone, including Terms and Conditions of Sale attached thereto
        and
        incorporated therein; (2) a Quote Summary dated November 2, 2005, submitted
        to
        Xfone by Embarq for installation of collocation facilities at
        seven  BellSouth central office sites in Mississippi (the “Collocation
        Work”); (3) Purchase Order No. 330606 dated November 16, 2005, issued by Xfone
        to Embarq to perform the Collocation Work; and (4) seven Notices of Job
        Completion and Job Acceptance Forms for the Collocation Work, each dated
        June
        21, 2006; and

       

      WHEREAS,
        a dispute exists between the Parties as to the scope of the Collocation Work,
        the manner in which it was carried out, and the timeliness of completion,
        and
        the Parties each contend that they have sustained damages and are owed money
        by
        the other as a result of these disputed issues; and

       

      WHEREAS,
        the Parties intend through this Agreement to resolve all claims and disputes
        associated with or related to performance of and payment for the Collocation
        Work;

       

      NOW
        THEREFORE, in consideration of the mutual covenants and agreements set forth
        below, the receipt and sufficiency of which are expressly acknowledged, the
        Parties hereto, intending to be legally bound, do hereby voluntarily and
        freely
        agree, after the opportunity to consult with counsel of their own choosing,
        to
        the following terms and conditions in order to settle the differences between
        and among them as to the above referenced matters:

       

      1.   Settlement
        Amount.  In consideration for the promises set forth herein, Xfone
        will pay Embarq a total of Eight Hundred Thirty Thousand Dollars ($830,000)
        (the
“Settlement Amount”), to be paid as follows:  (1) $415,004 to be
        wire-transferred pursuant to Embarq’s written instructions contemporaneously
        with the execution of this Agreement (the "First Payment") ; and (2) the
        balance
        to be paid by a promissory note in the amount of $414,996 executed by Xfone
        contemporaneously with its execution of this Agreement in the form attached
        hereto as Exhibit A (the “Note”).  The Note will provide for payment
        to be made in six equal installments of $69,166, each due on the 30th day
        of the
        month beginning on June 30, 2007 and continuing through November 30,
        2007.

       

      2.  Parent
        Guarantee.  Contemporaneously with its execution of this
        Agreement, and in consideration of the promises set forth herein, Parent
        will
        execute a parent guarantee in the form attached hereto as Exhibit
        B.

       

      3.   Embarq
        Release.  Embarq, on behalf of itself, its affiliates, its
        subsidiaries and divisions, and each of their respective past, present, and
        future employees, officers, directors, attorneys, representatives, predecessors,
        successors and permitted assigns, absolutely, unconditionally, completely,
        forever and without reservation, hereby irrevocably releases, acquits, remises,
        and forever discharges Xfone and Parent, together with their affiliates,
        subsidiaries and divisions, and each of their respective past, present, and
        future employees, officers, directors, attorneys, representatives, predecessors,
        successors and permitted assigns of and from any and all manner of claims,
        counterclaims, costs, expenses, demands, rights, liabilities, damages, potential
        actions, causes of action, suits, judgments, decrees, controversies and the
        like, of any kind and nature whatsoever, whether liquidated or unliquidated,
        fixed or contingent, matured or unmatured, known or unknown, foreseen or
        unforeseen, at law, in equity, or otherwise, which Embarq has or ever had
        against Xfone and/ or Parent in connection with or relating to the Collocation
        Work.

       

      
        
          
          

        

        
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      4.   Xfone
        and Parent Release.  Xfone and Parent, on behalf of themselves,
        their affiliates, their subsidiaries and divisions, and each of their respective
        past, present, and future employees, officers, directors, attorneys,
        representatives, predecessors, successors and permitted assigns, absolutely,
        unconditionally, completely, forever and without reservation, hereby irrevocably
        releases, acquits, remises, and forever discharges Embarq, together with
        its
        affiliates, its subsidiaries and divisions, and each of their respective
        past,
        present, and future employees, officers, directors, attorneys, representatives,
        predecessors, successors and permitted assigns, of and from any and all manner
        of claims, counterclaims, costs, expenses, demands, rights, liabilities,
        damages, potential actions, causes of action, suits, judgments, decrees,
        controversies and the like, of any kind and nature whatsoever, whether
        liquidated or unliquidated, fixed or contingent, matured or unmatured, known
        or
        unknown, foreseen or unforeseen, at law, in equity, or otherwise, which Xfone
        and/or Parent have or ever had against Embarq in connection with or relating
        to
        the Collocation Work.

       

      5.   Unknown
        Facts or
        Claims.   The parties to this Agreement acknowledge and agree
        that, although they may hereafter discover facts in addition to or different
        from those which they know or believe to be true as of the date of this
        Agreement, it is their intention hereby to fully, finally and forever, with
        respect to each other, settle and release the above described claims and,
        in
        furtherance of such intention, the releases shall be and remain in effect
        notwithstanding the discovery or existence of any such additional or different
        facts.  Each of the parties to this Agreement expressly waives
        whatever rights it may have under any applicable law providing that a general
        release does not extend to claims that a party does not know or suspect to
        exist
        in its favor at the time of executing this Agreement, and do so having had
        a
        full opportunity to consult with counsel and in full understanding the
        significance of that waiver.

       

      6.    Notices.    All
        notices, requests or other communications in connection with or relating
        to this
        Agreement must be in writing and sent to the addresses first written above
        by
        (a) certified mail, with return receipt requested, or (b) Federal Express
        or
        other overnight service, or (c) by facsimile and regular mail.  A
        notice shall be deemed to have been delivered on the date that it is
        received.

      
 

      7.    No
        Admission of Liability.  This Agreement is a compromise of
        disputed claims, and nothing contained herein shall constitute any adjudication
        or finding on the merits as to the claims of any Party or shall be construed
        as
        an admission of liability or acknowledgement of any fact, allegation, or
        claim
        that has been or could have been made concerning the Party in
        question.  Moreover, this Agreement shall not be construed as, or
        deemed to be evidence of, any admission or concession of fault, error, omission,
        or other ground for liability on the part of any Party, and all
        Parties specifically deny any fault, error, omission or other ground for
        liability.

       

      8.     Modification
        and Assignment.  This Agreement may not be modified, assigned, or
        transferred, except with the written consent of all parties to this
        Agreement.

       

      9.    No
        Inducements.  The parties to this Agreement declare and represent
        that no promises, inducements, or agreements not herein expressed have been
        made
        to the parties to this Agreement with respect to the subject matter of this
        Agreement, that this Agreement contains the entire agreement between the
        parties
        to this Agreement with respect to the subject matter of this Agreement, and
        that
        the terms of this Agreement are contractual and not a mere recital.

       

      10.   Authorization.  Each
        person executing this Agreement represents to the other that this Agreement
        has
        been duly authorized, executed and delivered by such party to this Agreement
        and
        constitutes the legal, valid and binding obligation of such party to this
        Agreement, and warrants that he or she has authority to so execute
        it, and each party to this Agreement hereby waives any claim that such
        individual was not so authorized.  Each of the parties
        to this Agreement further represents and warrants that it is duly constituted
        under applicable laws, that it is validly existing and in good standing under
        applicable laws, that it has all requisite corporate power and authority
        to
        execute and deliver this Agreement and to perform its obligations hereunder,
        and
        that the execution, delivery and performance of this Agreement by it will
        not
        result in any violation or be in conflict with its certificate of incorporation,
        bylaws or of any agreement, order, judgment, decree, statute, rule or regulation
        applicable to it.

       

      11.    Ownership
        of Claims.  Each of the Parties represents that it has not
        assigned or transferred, in any manner, to any person or entity, any right
        or
        interest to which they may be entitled regarding the released claims described
        herein.  Each Party represents and warrants that it is the owner and
        holder of all rights and interests concerning the subject matter of this
        Agreement.

       

      
        
          
          

        

        
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      12.  
        Counterparts and Facsimile Signatures.  This Agreement may be
        executed in counterparts which, taken together, shall constitute one and
        the
        same agreement.  A facsimile signature will be as valid as an original
        signature for all purposes relevant to this Agreement.

       

      13.   Binding
        Effect.  This Agreement shall be binding upon and shall inure to
        the benefit of the parties to this Agreement and their respective successors
        and
        assigns.

       

      14.   Continuing
        Effect.  The invalidity, illegality or unenforceability of any
        provision or part of any provision of this Agreement under any law shall
        not
        affect the other provisions or parts of this Agreement, which shall remain
        in
        full force and effect.

       

      15.   Governing
        Law.  This Agreement
is
        governed by the laws of the State of Kansas, without regard to choice of
        law
        principles.

       

      16.   Entire
        Agreement.  This Agreement constitutes the sole, only, entire and
        complete agreement of the parties to this Agreement relating in any way to
        the
        settlement of the claims described herein.  There are no oral or
        written collateral agreements relating to settlement of these claims, and
        all
        prior discussions and negotiations relating to this Agreement are merged,
        integrated into, and superseded by this Agreement.

       

      IN
        WITNESS WHEREOF, the parties to this Agreement have duly executed this Agreement
        effective as of the date first written above.

       

       

       

      
        	 	
                 Xfone
                  USA, Inc.

              	 
	 	 	 	 
	
                Date:
                  05/31/2007

              	
                By:
                  

              	/s/ Wade
                Spooner	 
	 	 	Name: Wade
                Spooner	 
	 	 	Title: President	 
	 	 	 	 


      

      
        	 	
                 Xfone
                  USA, Inc.

              	 
	 	 	 	 
	
                Date:
                  05/31/2007

              	
                By:
                  

              	/s/ Guy
                Nissenson	 
	 	 	Name: Guy
                Nissenson	 
	 	 	Title:
                CEO 	 
	 	 	 	 


      

      
        	 	
                Embarq
                  Logistics, Inc.

              	 
	 	 	 	 
	
                Date:
                  05/31/2007

              	
                By:
                  

              	/s/ Brad
                Clark	 
	 	 	Name:
                Brad Clark 	 
	 	 	Title: VP,
                Marketing & Sales	 
	 	 	 	 


      

       

       

      
        
          
          

        

        
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