Exhibit 7(d)
AGREEMENT AND PLAN OF MERGER
dated
as of
December 15, 2004
among
LMC ANIMAL PLANET, INC.,
LIBERTY N2P, INC.,
LIBERTY N2P II, INC., and
LIBERTY N2P III, INC.
and
IDT CORPORATION,
IDT LMC-N2P
ACQUISITION I, INC.,
IDT LMC-N2P ACQUISITION II,
INC., and
IDT LMC-N2P ACQUISITION III,
INC.
and
solely with respect to Section 6.07,
the
other signatories listed on the signature pages hereto
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND
PLAN OF MERGER (this Agreement),
dated as of December 15, 2004, by and among LMC Animal Planet, Inc., a
Colorado corporation (LMC Animal Planet),
Liberty N2P, Inc., a Delaware corporation (Liberty N2P),
Liberty N2P II, Inc., a Delaware corporation (Liberty N2P
II), Liberty N2P III, Inc., a Delaware corporation (Liberty N2P III, and together with Liberty N2P and Liberty
N2P II, the Seller Subsidiaries), IDT
Corporation, a Delaware corporation (IDT Parent),
IDT LMC-N2P Acquisition I, Inc., a Delaware corporation (IDT Sub 1),
IDT LMC-N2P Acquisition II, Inc., a Delaware corporation (IDT Sub 2),
and IDT LMC-N2P Acquisition III, Inc., a Delaware corporation (IDT Sub 3, and together with IDT Sub 1 and IDT Sub 2, the IDT Subsidiaries), and, solely with respect to Section 6.07,
the other signatories listed on the signature pages to this Agreement.
R E C I T A L S:
WHEREAS, each
Seller Subsidiary is a direct, wholly owned subsidiary of LMC Animal Planet,
which is an indirect majority owned subsidiary of Liberty Media Corporation, a
Delaware corporation (Liberty Parent);
WHEREAS, each
IDT Subsidiary is a direct wholly owned subsidiary of IDT Parent;
WHEREAS, the
sole assets of Liberty N2P and Liberty N2P II consist of membership interests
in NTOP Holdings, LLC, a Delaware limited liability company (NTOP);
WHEREAS, the
sole assets of NTOP consist of shares of Class A common stock, par value $.01
per share (Net2Phone Class A Common Stock),
of Net2Phone, Inc., a Delaware corporation (Net2Phone),
and membership interests in IT Stock, LLC, a Delaware limited liability
company, the sole assets of which consist of shares of Net2Phone Class A Common
Stock;
WHEREAS, the
sole assets of Liberty N2P III consist of shares of common stock, par value
$.01 per share (Net2Phone Common Stock), of
Net2Phone;
WHEREAS, IDT
Parent desires to acquire each Seller Subsidiary by means of a merger, and LMC
Animal Planet desires to effect such mergers; and
WHEREAS, it is
intended that, for U.S. federal income tax purposes, each such merger shall
qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the Code).
NOW THEREFORE,
the parties hereto agree as follows:
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Section 1.01 The
Mergers.
(a) At
the Closing (as defined in Section 2.04(a) below), (i) IDT Sub 1 shall be
merged with and into Liberty N2P (Merger 1),
(ii) IDT Sub 2 shall be merged with and into Liberty N2P II (Merger 2) and (iii) IDT Sub 3 shall be
merged with and into Liberty N2P III (Merger
3, and each, a Merger,
and collectively, the Mergers),
in each case in accordance with Section 251 of the General Corporation Law
of the State of Delaware (the DGCL)
and in accordance with the terms and conditions hereof, whereupon the separate
existence of each IDT Subsidiary shall cease in accordance with the DGCL, and
(A) Liberty N2P shall be the surviving entity of Merger 1 (Surviving Entity 1), (B) Liberty N2P II
shall be the surviving entity of Merger 2 (Surviving
Entity 2) and (C) Liberty N2P III shall be the surviving entity of
Merger 3 (Surviving Entity 3;
and each, a Surviving Entity,
and collectively, the Surviving Entities),
in each case in accordance with the DGCL.
(b) On
the Closing Date (as defined in Section 2.04(a) below), each Seller
Subsidiary shall file a certificate of merger with the Secretary of State of
Delaware and make all other filings or recordings required by the DGCL in
connection with the Merger to which it is a party. Each Merger shall become effective at such
time (the Effective Time) as the
corresponding certificate of merger is duly filed with the Secretary of State
of Delaware or at such later time as is specified in such certificate of
merger.
(c) From
and after the Effective Time of each Merger, the Surviving Entity of such Merger
shall possess all the rights, powers, privileges and franchises and be subject
to all of the obligations, liabilities, restrictions and disabilities of the
Seller Subsidiary party to such Merger and the IDT Subsidiary party to such
Merger, all as provided under the DGCL, and thereafter neither LMC Animal
Planet nor any of its Affiliates (as defined in Section 7.01 below) shall
have any right, obligation or liability with respect to any Seller Subsidiary
other than as expressly set forth in this Agreement.
(a) At
the Effective Time of the Merger of Liberty N2P and IDT Sub 1, by virtue of
such Merger and without any action on the part of any of the parties hereto or
any holder of any securities of Liberty N2P or IDT Sub 1, (i) each share of
common stock of Liberty N2P outstanding immediately prior to such Effective
Time shall automatically be converted into the right to receive 3,268.9719
shares of Class B Common Stock, par value $.01 per share, of IDT Parent (IDT Parent Class B Common Stock), and (ii)
each share of common stock of IDT Sub 1 outstanding immediately prior to such
Effective Time shall automatically be converted into one share of common stock
of Surviving Entity 1.
(b) At
the Effective Time of the Merger of Liberty N2P II and IDT Sub 2, by virtue of
such Merger and without any action on the part of any of the parties hereto or
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any holder of any securities of
Liberty N2P II or IDT Sub 2, (i) each share of common stock of Liberty N2P II
outstanding immediately prior to such Effective Time shall automatically be
converted into the right to receive 236.3762 shares of IDT Parent Class B
Common Stock, and (ii) each share of common stock of IDT Sub 2 outstanding immediately
prior to such Effective Time shall automatically be converted into one share of
common stock of Surviving Entity 2.
(c) At
the Effective Time of the Merger of Liberty N2P III and IDT Sub 3, by virtue of
such Merger and without any action on the part of any of the parties hereto or
any holder of any securities of Liberty N2P III or IDT Sub 3, (i) each share of
common stock of Liberty N2P III outstanding immediately prior to such Effective
Time shall automatically be converted into the right to receive 249.1313 shares
of IDT Parent Class B Common Stock, and (ii) each share of common stock of IDT
Sub 3 outstanding immediately prior to such Effective Time shall automatically
be converted into one share of common stock of Surviving Entity 3. The shares of IDT Parent Class B Common Stock
issuable in the Mergers, as may be adjusted pursuant to Section 1.02(d),
are referred to herein as the Consideration
Shares.
(d) In
the event of any dividend, distribution, recapitalization, stock split or
combination, or similar event with respect to or affecting the IDT Parent Class
B Common Stock after the date hereof and prior to the Effective Time of the
Mergers, the foregoing exchange ratios shall be appropriately adjusted.
(e) At
the Effective Time of each Merger, all shares of common stock of Liberty N2P,
Liberty N2P II and Liberty N2P III, as applicable, that have been converted
into the right to receive shares of IDT Parent Class B Common Stock shall be
automatically canceled and shall cease to exist, and the holder of the common
stock of Liberty N2P, Liberty N2P II and Liberty N2P III shall cease to have
any rights with respect to such shares, other than the right to receive
certificates representing the Consideration Shares exchangeable therefor.
Section 1.03 No
Fractional Shares. No certificates
or scrip representing fractional shares of IDT Parent Class B Common Stock
shall be issued as a result of any conversion provided for in Section 1.02. In lieu of the issuance of fractional shares,
in the event a holder of Seller Subsidiary capital stock would be entitled to
receive any fraction of a share of IDT Parent Class B Common Stock pursuant to Section 1.02,
such fraction shall be rounded up to the nearest whole number, so that such
holder will receive a whole number of shares of IDT Parent Class B Common
Stock; provided, however, that if more than one certificate representing shares
of any Seller Subsidiary capital stock shall be surrendered for the account of
the same holder, the number of shares of IDT Parent Class B Common Stock for
which certificates have been surrendered shall be computed on the basis of the
aggregate number of shares represented by the certificates so surrendered with
respect to such Seller Subsidiary.
Section 1.04 Stock
Transfer Books; Extinction of Stockholder Rights. At the Effective Time of each Merger, the
stock transfer books of the Seller Subsidiary party to such Merger shall be
closed with respect to the shares of common stock of such Seller
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Subsidiary outstanding immediately prior to such
Effective Time. All
Consideration Shares issued upon surrender of a certificate representing shares
of common stock of any Seller Subsidiary in accordance with the terms hereof
shall be deemed to have been issued in full satisfaction of all rights
pertaining to that certificate and the shares of Seller Subsidiary common stock
represented thereby, and there shall be no further registration of transfers on
the stock transfer books of any Seller Subsidiary of shares of common stock of
such Seller Subsidiary outstanding immediately prior to the Effective Time of
the Merger to which such Seller Subsidiary is party.
Section 1.05 Tax
Effect. The parties intend
that each of the Mergers shall qualify as a tax-free reorganization within the
meaning of Section 368(a) of the Code and that this Agreement shall be and
hereby is adopted by each of the parties as a plan of reorganization for
purposes of Section 368 of the Code and the Treasury Regulations (as
defined in Section 7.01 below) thereunder.
Section 2.01 Certificate of Incorporation. The certificate of
incorporation of each IDT Subsidiary in effect at the Effective Time of the
Merger to which such IDT Subsidiary is party shall be the certificate of
incorporation of the Surviving Entity of such Merger, until amended in
accordance with the DGCL.
Section 2.02 Bylaws. The bylaws of each IDT
Subsidiary in effect at the Effective Time of the Merger to which such IDT
Subsidiary is party shall be the bylaws of the Surviving Entity of such Merger,
until amended in accordance with the DGCL.
Section 2.03 Officers and Directors. From and after the Effective
Time of each Merger, the officers and directors of each IDT Subsidiary
immediately prior to such Effective Time shall be the officers and directors of
the corresponding Surviving Entity, each to hold office in accordance with the
bylaws of such Surviving Entity or until his or her successor is designated in accordance
therewith.
Section 2.04 Closing.
(a) Time
and Place. The consummation of the
Mergers and the issuance and delivery of the Consideration Shares by IDT Parent
to LMC Animal Planet, in its capacity as the sole stockholder of the Seller
Subsidiaries (the Closing), will
take place at the offices of Baker Botts L.L.P., 30 Rockefeller Plaza, New
York, New York, at 5:00 p.m. on the Business Day that is three (3) Business
Days after the date on which the conditions set forth in Article 3 have
been fulfilled or, where permissible, waived, or at such other time and place
as IDT Parent and LMC Animal Planet may agree orally or in writing (the Closing Date). For purposes of this Agreement, Business Day means a day other than a
Saturday, Sunday or day on which banks in the City of New York are authorized
to close.
(b) Deliveries. At the Closing:
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(i) LMC
Animal Planet shall deliver to IDT Parent:
(1) a
certificate of the secretary of LMC Animal Planet, dated the Closing Date,
certifying (A) the signature and incumbency of each officer of LMC Animal
Planet who signed this Agreement or the Registration Rights Agreement and (B)
that all necessary corporate and shareholder action required to be taken by the
board of directors and shareholders of LMC Animal Planet in connection with the
execution, delivery and performance of this Agreement and the Registration
Rights Agreement and the consummation of the transactions contemplated hereby
and thereby has been taken;
(2) a
certificate of the secretary of each Seller Subsidiary, dated the Closing Date,
certifying (A) the signature and incumbency of each officer of such company who
signed this Agreement and (B) that all necessary corporate and shareholder
action required to be taken by the board of directors and shareholders of such
company in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby
(including, without limitation, the Mergers) has been taken;
(3) a long form certificate of good standing of LMC Animal
Planet from the Colorado Secretary of State, as of a date not more than 3 days
prior to the Closing Date;
(4) a long form certificate of good standing of each Seller Subsidiary
from the Delaware Secretary of State, each as of a date not more than 3 days
prior to the Closing Date;
(5) the certificate of LMC Animal Planet described in Section 3.03(b);
(6) certificates representing all of the issued and outstanding
shares of common stock of each Seller Subsidiary;
(7) the stock transfer book of each Seller Subsidiary, if any;
(8) resignations from the directors and officers of each Seller
Subsidiary; and
(9) a Registration Rights Agreement, in the form attached hereto
as Annex A (the Registration Rights Agreement), executed
by LMC Animal Planet.
(ii) IDT
Parent and the IDT Subsidiaries shall deliver to LMC Animal Planet:
(1) a certificate of the secretary of (A) each of IDT Parent and
each IDT Subsidiary, dated the Closing Date, certifying the signature and
incumbency of each officer of such company who signed this Agreement or the
Registration Rights Agreement and that all necessary corporate and shareholder
action required to be taken
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by the board of directors and
shareholders of each of IDT Parent and each IDT Subsidiary in connection with
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby (including, without limitation, the
Mergers) has been taken; and (B) IDT Parent, dated the Closing Date, certifying
that all necessary corporate and shareholder action required to be taken by IDT
Parent in connection with the execution, delivery and performance of the
Registration Rights Agreement and the consummation of the transactions
contemplated thereby has been taken;
(2) a long form certificate of good standing of each of IDT
Parent and each IDT Subsidiary from the Delaware Secretary of State, each as of
a date not more than 3 days prior to the Closing Date;
(3) the certificates described in Section 3.02(d);
(4) duly
executed stock certificates representing 3,754,479 Consideration Shares
(subject to adjustment as provided in Section 1.02(d)), duly executed and
in proper form, registered in the name of LMC Animal Planet in such
denominations as shall be provided by LMC Animal Planet to IDT Parent not less
than 3 Business Days prior to the Closing Date;
(5) the Registration Rights Agreement executed by IDT Parent;
and
(6) a fully executed listing application authorizing the
Consideration Shares for listing on the New York Stock Exchange, Inc. (NYSE), subject only to official notice of
issuance.
Section 3.01 Conditions
to Each Partys Obligation to Effect the Mergers. The respective obligations of each party to
consummate the Mergers are subject to and conditioned on the satisfaction (or,
to the extent permitted by Applicable Law (as defined in Section 4.05(d)
below), waiver) prior to or at the Closing, of the following condition(s):
(a) No
Restraints. No provision of
Applicable Law shall be in effect which has the effect of making the Mergers or
any of the other transactions contemplated hereby or by the Registration Rights
Agreement illegal or shall otherwise restrain or prohibit the consummation of
the transactions contemplated hereby (including, without limitation, the
Mergers) and thereby.
(b) No
Litigation. No court, governmental
or other proceedings shall be pending or, to the knowledge of the executive
officers of any party hereto, threatened against or affecting any party hereto
that, if resolved adversely to any party hereto, would have, individually or in
the aggregate, the effect of preventing or materially burdening or
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materially
impairing the ability of any party hereto to consummate the transactions
contemplated hereby (including, without limitation, the Mergers).
(c) Shareholder
Consent; Expiration of Waiting Period.
The Shareholder Consent (as defined in Section 5.02(e)) shall have
been obtained and be in full force and effect, and the twenty (20)-calendar
waiting period (the Waiting Period)
prescribed by Rule 14c-2 under the Securities Act of 1933, as amended (the Securities Act), with respect to the
distribution of the related Information Statement (as defined in Section 6.02(b)
below) shall have expired, and no action, suit, proceeding or investigations by
the Securities and Exchange Commission (the SEC)
or the NYSE shall have been initiated and be continuing or have been threatened
and resolved adverse to IDT Parent, in respect of such Shareholder Consent or
Information Statement.
(d) HSR. Any waiting period (and any extension
thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the HSR Act),
applicable to the transactions contemplated hereby shall have expired or shall
have been terminated.
Section 3.02 Conditions
of LMC Animal Planet and the Seller Subsidiaries to Effect the Mergers. The respective obligations of LMC Animal
Planet and the Seller Subsidiaries, or any of them, to consummate the Mergers
are subject to and conditioned upon the satisfaction (or, to the extent
permitted by Applicable Law, waiver by LMC Animal Planet) prior to or at the
Closing, of each of the following conditions:
(a) Representations
and Warranties; Covenants. The
representations and warranties of each of IDT Parent and each IDT Subsidiary
contained in this Agreement shall, if specifically qualified by materiality, be
true and correct in all respects and, if not so qualified, be true and correct
in all material respects, in each case as of the Closing Date, except to the
extent such representations and warranties are expressly made as of only an
earlier date (in which case such representations and warranties qualified as to
materiality shall be true and correct in all respects, and those not so
qualified shall be true and correct in all material respects, on and as of such
earlier date), and all covenants and agreements of each of IDT Parent and each
IDT Subsidiary contained in this Agreement to be performed on or prior to the
Closing Date shall have been performed or complied with, as applicable, in all
material respects on or prior to the Closing Date.
(b) Registration
Rights Agreement. IDT Parent shall
have executed and delivered the Registration Rights Agreement for execution by
LMC Animal Planet.
(c) NYSE
Listing. The Consideration Shares
issuable in the Mergers shall have been authorized for listing on the NYSE,
subject only to official notice of issuance, and the shareholder approval
requirements of Section 312.03 of the NYSE Listed Company Manual shall
have been complied with.
(d) Compliance
Certificate. LMC Animal Planet shall
have received a certificate from each of IDT Parent and each IDT Subsidiary,
dated as of the Closing Date, executed by an executive officer of IDT Parent
and by an executive officer of each
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IDT Subsidiary, respectively,
stating that, to the knowledge of such person, the conditions set forth in
Sections 3.01(c) and 3.02(a), (b), (c) and (e) have been satisfied.
(e) No
Material Adverse Effect. Since the
date of this Agreement, there shall have been no event, occurrence or
circumstance which has had, or would reasonably be expected to have, a Material
Adverse Effect (as defined in Section 5.01 below).
Section 3.03 Conditions
of IDT Parent and each IDT Subsidiary to Effect the Mergers. The respective obligations of IDT Parent and
the IDT Subsidiaries, or any of them, to consummate the Mergers are subject to
and conditioned upon the satisfaction (or, to the extent permitted by
Applicable Law, waiver by IDT Parent) prior to or at the Closing, of the following
conditions:
(a) Representations
and Warranties; Covenants. The
representations and warranties of LMC Animal Planet contained in this Agreement
shall, if specifically qualified by materiality, be true and correct in all
respects and, if not so qualified, be true and correct in all material
respects, in each case as of the Closing Date, except to the extent such
representations and warranties are expressly made as of only an earlier date
(in which case such representations and warranties qualified as to materiality
shall be true and correct in all respects, and those not so qualified shall be
true and correct in all material respects, on and as of such earlier date), and
all covenants and agreements of each of LMC Animal Planet and each Seller
Subsidiary contained in this Agreement to be performed on or prior to the
Closing Date shall have been performed or complied with, as applicable, in all
material respects on or prior to the Closing Date.
(b) Compliance
Certificate of LMC Animal Planet.
IDT Parent shall have received a certificate from LMC Animal Planet,
dated as of the Closing Date, executed by an executive officer of LMC Animal
Planet stating that, to the knowledge of such executive officer, the condition
set forth in Section 3.03(a) has been satisfied.
LMC Animal
Planet represents and warrants to each of IDT Parent and each IDT Subsidiary
that:
Section 4.01 Organization,
Good Standing and Qualification. Each of LMC Animal Planet and each Seller
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own, lease and operate its
properties and assets and to carry on its business as currently conducted. No Seller Subsidiary is required to be
qualified to do business as a foreign corporation in any jurisdiction.
Section 4.02 Capitalization;
No Liens.
(a) The
authorized capital stock of each of Liberty N2P, Liberty N2P II and Liberty N2P
III consists solely of 10,000 shares of common stock, par value $.01 per share,
1,000 shares of which are issued and outstanding in the case of each of Liberty
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N2P, Liberty
N2P II and Liberty N2P III (collectively, the Seller Subsidiaries Stock). LMC Animal Planet owns all of the issued and
outstanding shares of Seller Subsidiaries Stock.
(b) Other
than this Agreement, there are (i) no outstanding options, warrants,
agreements, conversion rights, exchange rights, preemptive rights or other
rights (whether contingent or not) to subscribe for, purchase or acquire any
issued or unissued shares of common stock of any of the Seller Subsidiaries,
(ii) no outstanding stock appreciation, phantom stock, profit participation, or
similar rights with respect to any of the Seller Subsidiaries, (iii) no rights,
contracts, commitments or arrangements (contingent or otherwise) obligating any
Seller Subsidiary to either (A) redeem, purchase or otherwise acquire, or offer
to purchase, redeem or otherwise acquire, any outstanding shares of, or any
outstanding warrants or rights of any kind to acquire any shares of, or any
outstanding securities that are convertible into or exchangeable for any shares
of, common stock of such Seller Subsidiary, or (B) pay any dividend or make any
distribution in respect of any shares of, or any outstanding securities that
are convertible or exchangeable for any shares of, common stock of such Seller
Subsidiary, (iv) no agreements or arrangements under which any Seller
Subsidiary is obligated to register the sale of any of its securities under the
Securities Act, and (v) except as described on Schedule 4.02(b) of
the Seller Disclosure Schedules, no restrictions upon, or Contracts (as defined
below) or understandings of any Seller Subsidiary, or to the knowledge of the
executive officers of each of LMC Animal Planet and each Seller Subsidiary,
Contracts or understandings of any other person, with respect to, the voting or
transfer of any shares of common stock of such Seller Subsidiary. Except as described on Schedule 4.02(b)
of the Seller Disclosure Schedules, no party has any right of first refusal,
right of first offer, right of co-sale or other similar right regarding the
securities of any Seller Subsidiary. For
purposes of this Agreement, Contract
means any written or oral agreement, lease, license, contract, note, mortgage,
indenture, arrangement or other obligation.
(c) LMC
Animal Planet has delivered to IDT Parent true and complete copies of the
Certificate of Incorporation and Bylaws of each Seller Subsidiary, as in effect
on the date hereof and as will be in effect on the Closing Date.
(d) Except
as described on Schedule 4.02(d) of the Seller Disclosure
Schedules, all shares of the Seller Subsidiaries Stock have been duly
authorized and validly issued and are fully paid and nonassessable and are
owned free and clear of any mortgage, pledge, lien, security interest, purchase
option, call, claim, restriction on transfer, voting restriction, charge or
encumbrance of any kind (each, a Lien).
Section 4.03 Assets
of Seller Subsidiaries.
(a) Liberty
N2P is the record owner of 33 Class A Membership
Interests of NTOP (NTOP Class A Units)
and 97 Class B Membership Interests of NTOP (NTOP
Class B Units). Liberty N2P
II is the record owner of 23 NTOP Class A Units.
Liberty N2P III is the record owner of 1,250,000 shares of Net2Phone Common
Stock. Except as described on Schedule 4.03(a)
of the Seller Disclosure Schedule, the Seller Subsidiaries own the foregoing
securities (collectively, the Securities)
free and
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clear
of any Lien. Other than the Securities,
no Seller Subsidiary owns any other asset, and, except for Taxes (as defined in
Article 7 below), its obligations under this Agreement and the obligations
described on Schedule 4.03(a) of the Seller Disclosure Schedules,
no Seller Subsidiary has any liabilities.
No Seller Subsidiary is a party to any Contract other than this
Agreement and the agreements listed on Schedule 4.03(a) of the
Seller Disclosure Schedules. No Seller
Subsidiary has any employees or conducts any business other than owning its
respective Securities.
(b) Except
as expressly set forth in Section 4.03(a), LMC Animal Planet makes no
representation or warranty with respect to the business, assets, capital
structure, results or operations, financial condition or prospects of, or any
other matter concerning, NTOP or Net2Phone.
Section 4.04 Corporate
Authority.
(a) Each
of LMC Animal Planet and each Seller Subsidiary has all requisite corporate
power and authority necessary in order to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby (including, without limitation, the Mergers). LMC Animal Planet has all requisite corporate
power and authority necessary to execute, deliver and perform its obligations
under the Registration Rights Agreement and to consummate the transactions
contemplated thereby.
(b) The
execution, delivery and performance by each of LMC Animal Planet and each
Seller Subsidiary of this Agreement and the consummation of the transactions
contemplated hereby (including, without limitation, the Mergers) have been duly
authorized by all necessary corporate and shareholder action on the part of
each of LMC Animal Planet and each Seller Subsidiary. The execution, delivery and performance by
LMC Animal Planet of the Registration Rights Agreement and the consummation of
the transactions contemplated thereby have been duly authorized by all
necessary corporate action on the part of LMC Animal Planet.
(c) Each
of LMC Animal Planet and each Seller Subsidiary has duly executed and delivered
this Agreement. This Agreement is a valid and binding agreement of each of LMC
Animal Planet and each Seller Subsidiary, enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors rights and general equity principles.
(d) The
Registration Rights Agreement, when executed and delivered by LMC Animal Planet
in accordance with this Agreement, will be duly executed and delivered by LMC
Animal Planet and will constitute a valid and binding agreement of LMC Animal
Planet, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors
rights and general equity principles.
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Section 4.05 No
Violation; Consents.
(a) The
execution, delivery and performance by each of LMC Animal Planet and each
Seller Subsidiary of this Agreement and the consummation of the transactions
contemplated hereby (including, without limitation, the Mergers) by each of LMC
Animal Planet and each Seller Subsidiary, and the execution, delivery and
performance by LMC Animal Planet of the Registration Rights Agreement and the
consummation of the transactions contemplated thereby by LMC Animal Planet, do
not and will not contravene any Applicable Law (assuming the expiration or
termination of any applicable waiting period under the HSR Act), except for any
such contravention that would not, individually or in the aggregate, reasonably
be expected (i) as to any Seller Subsidiary, to have a material adverse effect
on its assets, (ii) as to each of LMC Animal Planet and each Seller Subsidiary,
to prevent or materially burden or materially impair its ability to perform its
obligations hereunder, or (iii) as to LMC Animal Planet, to prevent or
materially burden or materially impair its ability to perform its obligations
under the Registration Rights Agreement.
(b) The
execution, delivery and performance of this Agreement by each of LMC Animal
Planet and each Seller Subsidiary (i) will not violate, result in a breach of
or constitute (with or without due notice or lapse of time or both) a material
default (or give rise to any right of termination, cancellation or
acceleration) under any Contract to which LMC Animal Planet or such Seller
Subsidiary is a party or by which its assets is subject (assuming that the
waiver and consent contemplated by Section 6.07(a) is valid, binding and
enforceable against each of IDT Parent and each IDT Member), and (ii) will not
conflict with or violate any provision of the Certificate of Incorporation or
Bylaws of LMC Animal Planet or such Seller Subsidiary, as in effect on the date
hereof and as will be in effect on the Closing Date.
(c) Except
for (i) the waiver and consent contemplated by Section 6.07(a), (ii) the
making of any applicable filings under the HSR Act, (iii) the expiration or
termination of any applicable waiting periods under the HSR Act and (iv) the
filing of the certificates of merger contemplated by Section 1.01(b), no
consent, authorization or order of, or filing or registration with, any
Governmental Entity (as defined below) or other person is required to be
obtained or made by LMC Animal Planet or any Seller Subsidiary for the
execution, delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby (including, without limitation, the
Mergers) by LMC Animal Planet and the Seller Subsidiaries, or by LMC Animal
Planet for the execution, delivery and performance of the Registration Rights
Agreement or the consummation of the transactions contemplated thereby, except
where the failure to obtain such consents, authorizations or orders, or make
such filings or registrations, would not, individually or in the aggregate,
reasonably be expected (A) as to any Seller Subsidiary, to have a material
adverse effect on its assets, (B) as to each of LMC Animal Planet and each
Seller Subsidiary, to prevent or materially burden or materially impair its
ability to perform its obligations hereunder, or (C) as to LMC Animal Planet,
to prevent or materially burden or materially impair its ability to perform its
obligations under the Registration Rights Agreement.
11
(d) The
term Applicable Law for purposes
of this Agreement means (i) any foreign, United States federal, state or local
law, statute, rule, regulation, order, writ, injunction, judgment, decree,
arbitration award, agency requirement, license or permit of any Governmental
Entity, and (ii) any rule or listing requirement of the NYSE. The term Governmental
Entity for purposes of this Agreement means any governmental or
regulatory authority, agency, commission, body or other governmental entity or
court.
Section 4.06 Litigation. There are no outstanding judgments against or
affecting any of the Seller Subsidiaries, or proceedings pending or, to the
knowledge of the executive officers of each of LMC Animal Planet and each
Seller Subsidiary, threatened against or affecting any of the Seller
Subsidiaries or any of their respective assets.
Section 4.07 Unregistered
Consideration Shares. LMC
Animal Planet represents and warrants that it is aware that (i) the offer and
sale of the Consideration Shares have not been registered under the Securities
Act, (ii) the issuance of the Consideration Shares pursuant to the Mergers is
intended to be exempt from registration under the Securities Act and the rules
promulgated thereunder by the SEC, (iii) the Consideration Shares cannot be
offered, sold, assigned, transferred or otherwise disposed of, other than
pursuant to an effective registration statement or an available exemption from
registration, (iv) sales or transfers of the Consideration Shares are further
restricted by state securities laws, and (v) the certificates for the
Consideration Shares will bear the legend referred to in Section 6.04.
Section 4.08 Suitability
of Investment. LMC Animal Planet represents and warrants
that it:
(a) is
an accredited investor within the meaning of Rule 501 of Regulation D of the
Securities Act as presently in effect and is acquiring the Consideration Shares
for its own account for investment purposes only and not with a view to the
resale or distribution thereof;
(b) will
not, directly or indirectly, offer, sell, transfer, assign, exchange or
otherwise dispose of all or any part of the Consideration Shares, except in
accordance with applicable federal and state securities laws;
(c) has
such knowledge and experience in financial, business and tax matters that it is
capable of evaluating the merits and risks relating to investment in the
Consideration Shares and making an investment decision with respect to IDT
Parent;
(d) has been given the opportunity to obtain information and
documents relating to IDT Parent and to ask questions of and receive answers
from representatives of IDT Parent concerning IDT Parent and the investment in
Consideration Shares;
(e) has
such knowledge and experience in financial or business matters that it can, and
it has, adequately analyzed the risks of an investment in the Consideration
Shares and it has determined the Consideration Shares are a suitable investment
for it and
12
that
it is able at this time, and in the foreseeable future, to bear the economic
risk of a total loss of its investment in the Consideration Shares; and
(f) is
aware that there are substantial risks incident to an investment in the
Consideration Shares.
Each of IDT
Parent and each IDT Subsidiary jointly and severally represents and warrants to
each of LMC Animal Planet and each Seller Subsidiary that:
Section 5.01 Organization,
Good Standing and Qualification. Each of IDT Parent and each IDT Subsidiary is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate or similar power
and authority to own, lease and operate its properties and assets and to carry
on its business as currently conducted.
IDT Parent is the sole stockholder of each IDT Subsidiary. Each of IDT Parent and each IDT Subsidiary is
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the ownership, lease or operation of its assets or
properties or conduct of its business requires such qualification, except where
the failure to be so qualified or in good standing, when taken together with
all other such failure, is not reasonably likely to have a Material Adverse
Effect. For purposes of this Agreement, Material Adverse Effect means (i) a material
adverse effect on the financial condition, prospects, properties, assets,
business or results of operations of IDT Parent and its subsidiaries taken as a
whole; provided, however, that any such effect resulting from any change that
affects companies in the telecommunications, Internet or Internet telephony
industries generally shall not be considered to be a Material Adverse Effect;
or (ii) the effect of preventing or materially burdening or materially
impairing the ability of IDT Parent or any IDT Subsidiary to perform its
obligations under this Agreement or, in the case of IDT Parent alone, to
perform its obligations under the Registration Rights Agreement.
Section 5.02 Capitalization;
No Liens.
(a) The
authorized capital stock of IDT Parent consists solely of (i) 100,000,000
shares of common stock, par value $.01 per share (IDT Parent Common Stock), of which 18,845,933 shares are issued and outstanding and
6,228,927 shares are held in treasury, (ii) 35,000,000 shares of Class A common
stock, par value $.01 per share (IDT Parent
Class A Common Stock), of which 9,816,988 shares are issued and
outstanding and none are held in treasury, (iii) 100,000,000 shares of IDT
Parent Class B Common Stock, of which 67,554,116 shares are issued and
outstanding and 1,608,290 shares are held in treasury, and 10,000,000 shares of
preferred stock, par value $.01 per share, none of which are issued and
outstanding and none are held in treasury.
(b) Equity
Rights and Other Equity-Related Agreements.
13
(i) Except
as set forth on Schedule 5.02(b)(i) to the Purchaser Disclosure
Schedules or as specifically disclosed in the Current IDT Reports (as defined
below), there are no:
(1) outstanding
options, warrants, agreements, conversion rights, exchange rights, preemptive
rights or other rights (whether contingent or not) (collectively, Equity Rights) to subscribe for, purchase
or acquire any issued or unissued shares of capital stock of IDT Parent or any
Significant Subsidiary (as defined below);
(2) authorized or outstanding stock appreciation, phantom stock,
profit participation or similar rights with respect to IDT Parent or any
Significant Subsidiary (collectively, Equity-Based
Awards); or
(3) securities or instruments containing antidilution or similar
provisions that will be triggered by the consummation of the Mergers
(collectively, Antidilution Rights);
provided,
however, that the representations and warranties of IDT Parent and the IDT
Subsidiaries set forth in this Section 5.02(b)(i) shall not be breached by
the existence of any Equity Rights, Equity-Based Awards or Antidilution Rights,
the existence of which would otherwise constitute a breach of this Section 5.02(b)(i)
(collectively, Undisclosed Rights), if the
exercise of all such Undisclosed Rights as of immediately prior to the
Effective Time of each Merger (whether or not then immediately exercisable)
could not, in the aggregate, result in (x) the issuance of capital stock (or
payment of other consideration based on the value of capital stock)
representing more than 3% (by value or voting power) of the capital stock of
IDT Parent then outstanding, or (y) the issuance of capital stock (or payment
of other consideration based on the value of capital stock) representing more
than 1% (by value or voting power) of the capital stock of any Significant
Subsidiary then outstanding.
(ii) Except
as set forth on Schedule 5.02(b)(ii) to the Purchaser Disclosure
Schedules or as specifically disclosed in the Current IDT Reports, there are
no:
(1) rights,
contracts, commitments or arrangements (contingent or otherwise) obligating IDT
Parent or any Significant Subsidiary to either (x) redeem, purchase or
otherwise acquire, or offer to purchase, redeem or otherwise acquire, any
outstanding shares of, or any outstanding warrants or rights of any kind to
acquire any shares of, or any outstanding securities that are convertible into
or exchangeable for any shares of, capital stock of IDT Parent or any
Significant Subsidiary, or (y) pay any dividend or make any distribution in
respect of any shares of, or any outstanding securities that are convertible or
exchangeable for any shares of, capital stock of IDT Parent or any Significant
Subsidiary;
14
(2) agreements or arrangements under which IDT Parent or any
Significant Subsidiary is obligated to register the sale of any of its
securities under the Securities Act;
(3) restrictions
upon, or Contracts or understandings of IDT Parent or any Significant
Subsidiary, or to the knowledge of the executive officers of each of IDT Parent
and each Significant Subsidiary, Contracts or understandings of any other
person, with respect to the voting or transfer of any shares of capital stock
of IDT Parent or any Significant Subsidiary;
(4) provisions
of the Certificate of Incorporation or Bylaws of IDT Parent as currently in
effect, and no agreement to which IDT Parent or any subsidiary of IDT Parent is
a party or by which IDT Parent or any subsidiary of IDT Parent is bound, that
would (x) require the vote of the holders of more than a majority of the voting
power of the shares of IDT Parents issued and outstanding IDT Parent Common
Stock, IDT Parent Class A Common Stock and IDT Parent Class B Common Stock,
voting together as a single class, to take or prevent any corporate action,
other than those matters requiring a class vote under the DGCL, or (y) entitle
any party to nominate or elect any director of IDT Parent or require any of IDT
Parents stockholders to vote for any such nominee or other person as a
director of IDT Parent; or
(5) rights of first refusal, rights of first offer, rights of
co-sale or other similar rights regarding the securities of IDT Parent.
(iii) For
purposes of this Agreement: (A) the term
Current IDT Reports means the
report of IDT Parent on Form 10-K, as filed with the SEC on October 14,
2004, the definitive proxy statement of IDT Parent on Schedule 14A, as
filed with the SEC on November 3, 2004, and any reports of IDT Parent on
Form 10-Q and Form 8-K as filed with the SEC from the period commencing October 14,
2004 and ending on the date of this Agreement; (B) the term person means any individual, partnership,
corporation, limited liability company, joint venture, association, joint-stock
company trust, unincorporated organization, government or agency or political
subdivision thereof or other entity; and (C) the term Significant Subsidiary means each of IDT
Telecom, Inc., IDT Media, Inc. and IDT Entertainment, Inc.
(c) IDT
Parent has delivered to LMC Animal Planet true and complete copies of the
Certificate of Incorporation and Bylaws of each of IDT Parent and each IDT
Subsidiary, as in effect on the date hereof and as will be in effect on the
Closing Date.
(d) All
of the issued and outstanding shares of IDT Parent capital stock are duly
authorized, validly issued, fully paid and nonassessable. All outstanding shares of the capital stock
of each subsidiary of IDT Parent beneficially owned by IDT Parent have been
validly issued and are fully paid and nonassessable.
(e) The
issuance of the Consideration Shares has been approved by a written consent in
lieu of a meeting of IDT Parent shareholders holding a majority of the
outstanding voting power of IDT Parent (the Shareholder
Consent) in accordance
15
with
Section 228 of the DGCL. The
Shareholder Consent meets the shareholder approval requirements of Section 312.03
of the NYSE Listed Company Manual.
(f) Upon
delivery in accordance with the terms of this Agreement and the Mergers, the
Consideration Shares will be issued by IDT Parent from its authorized but
unissued shares of IDT Parent Class B Common Stock and will be validly issued,
fully paid and nonassessable and free of all Liens, other than those created by
this Agreement and the Registration Rights Agreement. Upon delivery of the Consideration Shares in
accordance with the terms of this Agreement and the Mergers, LMC Animal Planet
will receive good title to all of the Consideration Shares, free and clear of
any preemptive or similar rights. Each
of the Consideration Shares, when issued, will be issued in compliance with the
requirements of the Securities Act (subject to the accuracy of the representations
and warranties of LMC Animal Planet set forth in Sections 4.07 and 4.08), the
NYSE and applicable state securities laws or exemptions therefrom.
Section 5.03 Corporate
Authority.
(a) Each
of IDT Parent and each IDT Subsidiary has all requisite corporate power and
authority necessary in order to execute, deliver and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby
(including, without limitation, the Mergers).
IDT Parent has all requisite corporate power and authority necessary to
execute, deliver and perform its obligations under the Registration Rights
Agreement and to consummate the transactions contemplated thereby.
(b) The
execution, delivery and performance by each of IDT Parent and each IDT Subsidiary
of this Agreement and the consummation of the transactions contemplated hereby
(including, without limitation, the Mergers) have been duly authorized by all
necessary corporate and shareholder action on the part of each of IDT Parent
and each IDT Subsidiary. The execution,
delivery and performance by IDT Parent of the Registration Rights Agreement and
the consummation of the transactions contemplated thereby have been duly
authorized by all necessary corporate action on the part of IDT Parent.
(c) Each
of IDT Parent and each IDT Subsidiary has duly executed and delivered this
Agreement. This Agreement is a valid and binding agreement of each of IDT
Parent and each IDT Subsidiary, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors rights and general equity principles.
(d) The
Registration Rights Agreement, when executed and delivered by IDT Parent in
accordance with this Agreement, will be duly executed and delivered by IDT
Parent and will constitute a valid and binding agreement of IDT Parent,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors rights and general
equity principles.
16
Section 5.04 No
Violation; Consents.
(a) The
execution, delivery and performance by each of IDT Parent and each IDT
Subsidiary of this Agreement and the consummation of the transactions
contemplated hereby (including, without limitation, the Mergers) by each of IDT
Parent and each IDT Subsidiary, and the execution, delivery and performance by
IDT Parent of the Registration Rights Agreement and the consummation of the
transactions contemplated thereby by IDT Parent, do not and will not contravene
any Applicable Law (subject to the expiration of the Waiting Period and the
expiration or termination of any applicable waiting period under the HSR Act),
except for any such contravention that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The execution, delivery and performance by
each of IDT Parent and each IDT Subsidiary of this Agreement and the
consummation of the transactions contemplated hereby (including, without
limitation, the Mergers) by each of IDT Parent and each IDT Subsidiary, and the
execution, delivery and performance by IDT Parent of the Registration Rights
Agreement and the consummation of the transactions contemplated thereby by IDT
Parent, (i) will not (A) violate, result in a breach of or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under any Contract to which
IDT Parent or any IDT Subsidiary is a party or by which its respective assets
is subject, or (B) result in the creation or imposition of any Lien upon any of
the assets of IDT Parent or any IDT Subsidiary, and (ii) will not conflict with
or violate any provision of the Certificate of Incorporation or Bylaws of IDT
Parent or any IDT Subsidiary, each as in effect on the date hereof and as will
be in effect on the Closing Date.
(b) Except
for (i) filings with the NYSE to list the Consideration Shares, (ii) filings of
the Information Statement with the SEC, (iii) filings and approvals
contemplated by the terms of the Registration Rights Agreement, (iv) the making
of any applicable filings under the HSR Act, (v) the expiration or termination
of any applicable waiting periods under the HSR Act and (vi) the filing of the
certificates of merger contemplated by Section 1.01(b), no consent, authorization
or order of, or filing or registration with, any Governmental Entity or other
person is required to be obtained or made by IDT Parent or any IDT Subsidiary
for the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby (including, without
limitation, the Mergers) by IDT Parent or the IDT Subsidiaries, or by IDT
Parent for the execution, delivery and performance of the Registration Rights
Agreement or the consummation of the transactions contemplated thereby by IDT
Parent, except where the failure to obtain such consents, authorizations or
orders, or make such filings or registrations, would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.05 IDT
Reports; Financial Statements; Information Statement.
(a) IDT
Parent has timely filed all reports, registration statements and other filings,
together with any amendments or supplements required to be made with respect
thereto, that it has been required to file with the SEC under the Securities
Act and the Securities Exchange Act of 1934, as amended (the Exchange Act). As of the
17
respective dates of their
filing with the SEC, the IDT Reports complied in all material respects with the
applicable provisions of the Securities Act and the Exchange Act and did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. For purposes of this
Agreement, IDT Reports means all
reports, registration statements and other filings made by IDT Parent with the
SEC since January 1, 2000 (including any amendments thereto, exhibits and
documents incorporated by reference therein).
(b) Each
of the consolidated balance sheets included in or incorporated by reference
into the IDT Reports (including the related notes and schedules) fairly
presents, or will fairly present, the consolidated financial position of IDT
Parent and its subsidiaries as of the date of such balance sheet, and each of
the consolidated statements of income, changes in stockholders equity, and
cash flows included in or incorporated by reference into the IDT Reports
(including any related notes and schedules) fairly presents, or will fairly
present, the results of operations, cash flows, and changes in stockholders
equity, as the case may be, of IDT Parent and its subsidiaries for the periods
set forth in such statements (subject, in the case of unaudited statements, to
notes and normal year-end audit adjustments that will not be material in amount
or effect), and in each case has been prepared in accordance with generally
accepted accounting principles (GAAP),
consistently applied during the periods involved, except as may be noted
therein, and in compliance in all material respects with the rules and
regulations of the SEC.
(c) The
Information Statement will be prepared in compliance with the requirements of
Regulation 14C promulgated under the Exchange Act and, when filed with the SEC,
when mailed to shareholders of IDT Parent and on the Closing Date will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
Section 5.06 Absence
of Certain Changes. Except as otherwise expressly disclosed in
the Current IDT Reports, since October 14, 2004 there has not been any
event or occurrence or any change in the financial condition, properties,
business or results of operations of IDT Parent that has caused or could
reasonably be expected to have a Material Adverse Effect.
Section 5.07 Litigation. Except as otherwise expressly disclosed in
the Current IDT Reports or as otherwise set forth on Schedule 5.07 to the
Purchaser Disclosure Schedules, there are not any (a) outstanding judgments against
or affecting IDT Parent or any of its subsidiaries, or (b) proceedings pending
or, to the knowledge of the executive officers of each of IDT Parent and each
IDT Subsidiary, threatened against or affecting IDT Parent or any of its
subsidiaries that, if resolved adversely to IDT Parent or any of its
subsidiaries, would have, individually or in the aggregate, a Material Adverse
Effect.
Section 5.08 Compliance
with Laws. Except as otherwise expressly disclosed in
the Current IDT Reports, the business of IDT Parent has not been, and is not
being,
18
conducted in violation of any
Applicable Law, except for violations or possible violations that, individually
or in the aggregate, would not be reasonably expected to have a Material
Adverse Effect. Except as otherwise
expressly disclosed in the Current IDT Reports, no investigation or review by
any Governmental Entity with respect to IDT Parent or any of its subsidiaries
is pending or, to the knowledge of the executive officers of each of IDT Parent
and each IDT Subsidiary, threatened, nor has any Governmental Entity indicated
an intention to conduct the same, except for those the outcome of which are
not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect.
Section 5.09 Permits
and Licenses. IDT Parent and
its subsidiaries have obtained all governmental permits, licenses, franchises
and authorizations required for IDT Parent and its subsidiaries to conduct
their respective businesses as currently conducted, except as otherwise
expressly disclosed in the Current IDT Reports and except for those the failure
of which to be obtained would not have a Material Adverse Effect.
Section 5.10 Intellectual
Property, etc. Except as otherwise expressly disclosed in
the Current IDT Reports, IDT Parent and its subsidiaries have taken all
reasonable efforts to ensure that they have, and have no reason to believe that
they do not have, all right, title and interest in, or a valid and binding
license to use, all IDT Intellectual Property (as hereinafter defined). IDT Parent and its subsidiaries (i) have not
defaulted in any material respect under any license to use any IDT Intellectual
Property, (ii) are not the subject of any proceeding or litigation for
infringement of any third party intellectual property, except for the
proceedings disclosed in IDT Reports filed and publicly available prior to the
date hereof, which proceedings IDT Parent believes are without merit, and (iii)
have no knowledge of circumstances that would be reasonably expected to cause
the loss or impairment of any IDT Intellectual Property, other than a default,
proceeding, litigation, loss or impairment that is not having or would not be
reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect. IDT Parent and its
subsidiaries have from time to time received correspondence from third parties
alleging that intellectual property rights purportedly owned by said third
parties have been violated by IDT Parent or its subsidiaries. IDT Parent and its subsidiaries have also
received correspondence asserting that a license may be necessary to avoid
alleged violation of third party rights, none of which assertions or
allegations has had or would be reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect, except as otherwise expressly
disclosed in the Current IDT Reports.
For purposes of this Agreement, IDT
Intellectual Property means patents and patent rights, trademark
and trademark rights, tradenames and tradename rights, service marks and
service mark rights, copyrights and copyright rights, trade secret and trade
secret rights, and other intellectual property rights, and all pending
applications for and registration of any of the foregoing that are used in the
conduct of the business of IDT Parent or its subsidiaries as presently
conducted.
Section 5.11 Private
Offering. Based, in part, on LMC Animal Planets
representations in Sections 4.07 and 4.08, the offer and sale of the
Consideration Shares is exempt from the registration and prospectus delivery
requirements of the Securities
19
Act. Neither IDT Parent, nor
anyone acting on its behalf, has offered or sold or will offer or sell any
securities, or has taken or will take any other action (including, without
limitation, any offering of any securities of IDT Parent) under circumstances
that would require, under the Securities Act, the integration of such offering
with the offering and sale of the Consideration Shares, that would subject the
issuance of the Consideration Shares to the registration provisions of the
Securities Act.
Section 5.12 Business
Combination Statutes. None of
LMC Animal Planet, IDT Parent or any of their respective affiliates and associates
(as such terms are defined in Section 203 of the DGCL or any comparable
business combination statute of any applicable jurisdiction) shall as a result
of the execution of this Agreement or consummation of the Mergers, be subject
to any of the restrictions of Section 203 of the DGCL, or any similar
provisions of Applicable Law with respect to IDT Parent or any of IDT Parents
direct or indirect subsidiaries, any of the shares of which are publicly traded.
Section 5.13 Conducted
Own Diligence. Each of IDT
Parent and each IDT Subsidiary represents, warrants, acknowledges and agrees
that it has conducted its own investigation and due diligence of each of NTOP
and Net2Phone and their respective businesses, assets, capital structure,
results or operations, financial condition and prospects and in entering into
this Agreement has not relied on any statements or information, whether oral or
written, made or furnished by LMC Animal Planet or any of its Affiliates to IDT
Parent or any of its directors, officers, employees or other Representatives
(as such term is defined in Section 6.03) with respect to NTOP or
Net2Phone (other than the representations and warranties made by LMC Animal
Planet in Section 4.03(a)).
Section 6.01 NYSE
Listing. IDT Parent will use its commercially
reasonable efforts to cause the Consideration Shares to be listed on the NYSE
upon the issuance of such shares pursuant to the Mergers.
Section 6.02 Commercially
Reasonable Efforts to Close; Preparation and Mailing of Information Statement.
(a) (i) Upon
the terms and subject to the conditions of this Agreement, the parties will in
good faith use all commercially reasonably efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper
or advisable consistent with Applicable Law to consummate and make effective in
the most expeditious manner practicable the Mergers in accordance with the
terms of this Agreement, including, without limitation, preparing and filing as
promptly as practicable an appropriate Filing of a Notification and Report Form
(each, an HSR Filing) pursuant
to the HSR Act and taking all other actions necessary, proper or advisable to
cause any applicable waiting period under the HSR Act to expire or be
terminated as soon as practicable. The
parties hereby agree to cooperate in all respects with each other
20
in connection with the
preparation and submission of any HSR Filing, and, if any objections are
asserted with respect to the Mergers under the HSR Act, each of the parties
agrees to use its reasonable best efforts to resolve any such objection;
provided, however, that no party shall be required to take any action
requiring, or enter into any settlement, undertaking or other agreement with a
Governmental Authority that requires, such party to hold separate (including by
establishing a trust or otherwise) or sell or otherwise dispose of any of its assets,
businesses or interests.
(b) Without
limiting the generality of the foregoing, as promptly as practicable after the
execution of this Agreement IDT Parent shall prepare and file with the SEC a
preliminary information statement on Schedule 14C relating to the
Shareholder Consent (together with any amendments thereof or supplements
thereto, the Information Statement). IDT Parent will notify LMC Animal Planet
promptly of the receipt of any comments from the SEC or its staff and of any
request by the SEC or its staff for amendments of or supplements to the
Information Statement and will supply LMC Animal Planet with any correspondence
between IDT Parent or its Representatives and the SEC or its staff with respect
to the Information Statement. IDT Parent
shall cause the Information Statement to comply in all material respects with
all Applicable Law. IDT Parent promptly
will advise LMC Animal Planet when the Information Statement has been cleared
for distribution by the SEC (or the 10-calendar day waiting period prescribed
by Rule 14c-5(a) has expired without comment from the SEC or its staff). As promptly as practicable after receipt of
such clearance (or the expiration of such waiting period), IDT Parent will mail
the Information Statement to its shareholders.
(c) If
at any time following the mailing of the Information Statement to IDT Parents
shareholders, IDT Parent determines that any amendment or supplement is
necessary to prevent the Information Statement from containing any untrue
statement of a material fact or omitting to state a material fact required to
be stated therein or necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading, IDT Parent shall
take such action as may be necessary to cure such untrue statement or omission
and ensure that the requirements of Regulation 14C and other Applicable Law are
complied with in order for the Shareholder Consent to be valid and effective as
of the Closing Date and for the Consideration Shares to be validly issued in
compliance with Applicable Law.
Section 6.03 Confidentiality. Unless otherwise agreed to in writing by the
parties hereto, each party hereto will, and will cause its Affiliates,
directors, officers, managers, employees and agents (such Affiliates and other
persons being collectively referred to as Representatives),
to (i) keep all Confidential Information of the other parties hereto
confidential and not disclose or reveal any such Confidential Information to
any person other than those Representatives who are participating in effecting
the Mergers or who otherwise need to know such Confidential Information, (ii)
use such Confidential Information only in connection with consummating the
transactions contemplated hereby and enforcing their respective rights
hereunder, and (iii) not use Confidential Information in any manner detrimental
to the other parties hereto. In the event that a party hereto (the Disclosing Party) is requested pursuant
to, or required by, Applicable Law or by legal process to disclose any
Confidential Information of
21
another party hereto (a Protected Party), such Disclosing Party
shall provide the Protected Party with prompt notice of such request(s) so that
the Protected Party may seek an appropriate protective order. The obligations of the parties hereunder with
respect to Confidential Information that (a) is disclosed to a third party with
the Protected Partys written approval, (b) is required to be produced under
order of a court of competent jurisdiction or other similar requirements of a
Governmental Entity, or (c) is required to be disclosed by Applicable Law,
will, subject in the case of clauses (b) and (c) above to the disclosing partys
compliance with the preceding sentence, cease to the extent of the disclosure
so consented to or required, except to the extent otherwise provided by the
terms of such consent or covered by a protective order. If a Disclosing Party uses a degree of care
to prevent disclosure of the Confidential Information that is at least as great
as the care it normally takes to preserve its own information of a similar
nature, it will not be liable for any disclosure that occurs despite the
exercise of that degree of care, and in no event will such Disclosing Party be
liable for any indirect, punitive, special, consequential or incidental damages
unless such disclosure resulted from its willful misconduct or gross
negligence, in which event it will be liable in damages for the lost profits of
the Protected Party resulting directly and solely from such disclosure. In the event this Agreement is terminated,
each party will, if so requested by another party hereto, promptly return or
destroy all of the Confidential Information of the requesting party, including
all copies, reproductions, summaries, analyses or extracts thereof or based
thereon in the possession of its Representatives; provided, however, that no
party will be required to return or cause to be returned summaries, analyses or
extracts prepared by it or its Representatives, but will destroy (or cause to
be destroyed) the same upon request of another party hereto. The confidentiality obligations of the
parties contained in this Section 6.03 shall survive until the third
anniversary of the date of this Agreement.
For purposes of this Section 6.03, Confidential Information with respect any party hereto means
all confidential and proprietary information about such party and its
subsidiaries that is furnished by it or its Representatives to another party
hereto or its Representatives, regardless of the manner in which it is
furnished, in connection with the transactions contemplated hereby. Confidential
Information does not include, however, information which (1) has been
or in the future is published or is now or in the future is otherwise in the
public domain through no fault of any party hereto or its Representatives, (2)
was available to any other party hereto or its Representatives on a
non-confidential basis prior to its disclosure by the disclosing party, (3)
becomes available to another party hereto or its Representatives on a
non-confidential basis from a person other than a party hereto or its
Representatives, who is not otherwise bound by a confidentiality agreement with
the party to which the information relates, or such partys Representatives, or
is not otherwise prohibited from transmitting the information to another party
or its Representatives, (4) is independently developed by another party hereto
or its Representatives through persons who have not had, either directly or
indirectly, access to or knowledge of such information or (5) is required to be
publicly disclosed by a party or its Representatives pursuant to Applicable
Laws.
Section 6.04 Transfer
Limitations; 1933 Act Legend.
(a) Each
certificate representing Consideration Shares shall bear a legend substantially
in the following form:
22
THE SHARES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE ACT), AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH
SHARES ARE REGISTERED UNDER THE ACT OR, EXCEPT AS OTHERWISE PERMITTED PURSUANT
TO RULE 144 UNDER THE ACT OR ANOTHER EXEMPTION FROM REGISTRATION UNDER THE ACT
OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IDT CORPORATION IS OBTAINED
TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) The
foregoing legend shall be removed from the certificates representing any
Consideration Shares, at the request of the holder thereof, at such time as (i)
such shares are sold pursuant to an effective registration statement or
pursuant to Rule 144 under the Securities Act, (ii) such shares become eligible
for resale pursuant to Rule 144(k), or (iii) an opinion of counsel reasonably
satisfactory to IDT Parent is obtained to the effect that such legend is not
required.
Section 6.05 Confidentiality
of Agreement. Unless otherwise required by Applicable Law
or as may be required in connection with the defense of a lawsuit or other
legal proceeding against a party, each party shall not disclose to any other
person (other than its Representatives) the existence or terms of this
Agreement.
Section 6.06 Notification
of Certain Matters. Between the date hereof and the Closing Date,
each party will give prompt notice in writing to the other parties of: (i) any information that indicates that any
of its representations or warranties contained herein was not true and correct
as of the date hereof or will not be true and correct as of the Closing Date,
(ii) the occurrence of any event which will result, or has a reasonable
prospect of resulting in, the failure of any condition specified in Article 3,
and (iii) any notice or other communication from any third party alleging that
the consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement or by the Registration Rights
Agreement or that such transactions otherwise may violate the rights of or
confer remedies upon such third party.
(a) Each
of IDT Parent, IDT Domestic-Union, LLC, a Delaware limited liability company
and a subsidiary of IDT Parent (IDT D-U),
and IDT Investments, Inc., a Nevada corporation and a subsidiary of IDT Parent
(IDT Investments and together
with IDT D-U, the IDT Members),
hereby consents to and waives any and all rights it may have with respect to
the transfer of Seller Subsidiaries Stock in the Mergers and the resultant
transfer of all of the indirect interests of Liberty Parent and LMC Animal
Planet in NTOP and Net2Phone, pursuant to (i) the Second Amended and Restated
Limited Liability Company Agreement of NTOP Holdings, LLC, dated as of October 19,
2001 (the NTOP LLC Agreement),
including, without limitation, pursuant to Section 9.2 thereof, and (ii)
the NTOP Holdings, LLC Right of First Offer
23
Agreement, dated as of January 6,
2003, as amended by Amendment No. 1 thereto, dated as of December 1, 2004,
by and among IDT Parent, the IDT Members, Liberty Parent, Liberty N2P, Liberty
N2P II and NTOP (the NTOP ROFR Agreement),
including, without limitation, pursuant to Section 2.1(a) thereof.
(b) Each
of the parties to the NTOP LLC Agreement agrees to forebear from exercising any
rights such party may have pursuant to Section 10.1(a)(i)
of NTOP LLC Agreement and/or pursuant to the NTOP ROFR Agreement, in each case,
until the earlier of the consummation of the transactions contemplated hereby
or the termination of this Agreement.
Section 6.08 Rule
144. IDT Parent agrees to file all reports and any
definitive proxy or information statements required to be filed by it with the
SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, for
so long as any shares of IDT Parent Class B Common Stock received by LMC Animal
Planet pursuant to the terms of this Agreement (including, without limitation,
pursuant to Section 9.06) constitute restricted securities within the
meaning of Rule 144 under the Securities Act.
Section 6.09 Asset
Maintenance.
(a) LMC
Animal Planet hereby agrees that, from the Closing through the earlier to occur
of (i) the third anniversary of the Closing Date or (ii) the assumption by
Liberty Parent of LMC Animal Planets indemnification obligations under Section 9.02
with respect to the representations and warranties of LMC Animal Planet
contained in Section 4.02 and the first four sentences of Section 4.03(a)
(such period, the Maintenance Period),
LMC Animal Planet will hold assets having a fair market value at least equal to
the lesser of (A) the then-fair market value of the Consideration Shares (as
the same shall be appropriately adjusted to reflect any dividend, distribution,
recapitalization, stock split or combination, or similar event with respect to
or affecting the IDT Parent Class B Common Stock following the Closing Date),
and (B) the product of $15.83 multiplied by the number of Consideration Shares
received at the Closing.
(b) For
purposes of this Section 6.09, the fair market value of an asset (other
than cash) means the price at which a willing seller would sell, and a willing
buyer would buy, such asset in an arms-length auction transaction, having full
knowledge of the facts (including any liabilities relating to such asset);
provided, however, that the fair market value of any asset that consists of
marketable securities which are listed on the NYSE or quoted on the Nasdaq
National Market shall be equal to the product of (x) the number of such
marketable securities multiplied by (y) the weighted average (based on trading
volume) of the daily closing prices (as of 4:00 p.m. eastern time) per share or
unit of such marketable securities as reported on the NYSE or quoted on the
Nasdaq National Market, as applicable (and in either case, as published in the
Wall Street Journal, or if not published therein or incorrectly published
therein, in another authoritative source selected by LMC Animal Planet), for
the twenty consecutive trading days ending on the second trading day prior to
the date on which such fair market value determination is made.
24
Section 7.01 Tax
Definitions. The following
terms, as used in this Article 7, have the following meanings:
Affiliate means, with respect to any person or entity, any
other person or entity directly or indirectly controlling, controlled by or
under common control with the first such person or entity.
Combined Tax means any income or franchise Tax payable to
any state, local or foreign taxing jurisdiction with respect to any Return that
includes any of the Seller Subsidiaries and is filed on, or will be filed on,
an affiliated, consolidated, combined or unitary basis.
Control means the ownership of stock possessing at least
80% of the total combined voting power of all classes of stock entitled to vote
and at least 80% of the total number of shares of each other class of stock of the
corporation.
Federal Tax means any Tax with respect to any Return that
includes any of the Seller Subsidiaries and is filed on, or will be filed on, a
consolidated basis pursuant to Section 1501 of the Code.
Final Determination means (i) any final determination of
liability in respect of a Tax that, under Applicable Law, is not subject to
further appeal, review or modification through proceedings or otherwise
(including the expiration of a statute of limitations or a period for the
filing of claims for refunds, amended Returns or appeals from adverse
determinations), including a determination as defined in Section 1313(a)
of the Code or execution of an Internal Revenue Service Form 870AD or (ii) the
payment of Tax by IDT Parent, LMC Animal Planet or any of their respective
Affiliates, whichever is responsible for payment of such Tax under Applicable
Law, with respect to any item disallowed or adjusted by a Taxing Authority (as
defined below), provided that such responsible party determines that no action
should be taken to recoup such payment and the other party agrees.
Pre-Closing Tax Period means any Tax
period ending on or before the Closing Date; and, with respect to a Tax period
that begins on or before the Closing Date and ends thereafter, the portion of
such Tax period ending on the Closing Date.
Returns means all returns, statements, reports, and forms
(including estimated tax or information returns and reports) relating to, or
required to be filed in connection with, any Taxes.
Tax means (i) any tax, governmental fee or other like
assessment or charge of any kind whatsoever (including, but not limited to,
withholding on amounts paid to or by any person), together with any interest,
penalty, addition to tax or additional amount imposed by any Governmental
Entity (a Taxing Authority) responsible for
the imposition of any such tax (domestic or foreign), and any liability for any
of the
25
foregoing as
transferee, (ii) in the case of any of the Seller Subsidiaries, liability for
the payment of any amount of the type described in clause (i) as a result of
having been before the Closing Date a member of an affiliated, consolidated,
combined or unitary group, and (iii) liability of any of the Seller
Subsidiaries for the payment of any amount as a result of being a party to any
Tax Sharing Agreement (other than this Agreement) before the Closing Date.
Tax Sharing Agreements means all existing agreements or
arrangements (whether or not written) binding any of the Seller Subsidiaries
that provide for the allocation, apportionment, sharing or assignment of any
Tax liability or benefit.
Treasury Regulations means the regulations promulgated
under the Code in effect on the date hereof and the corresponding sections of
any regulations subsequently issued that amend or supersede such regulations.
Section 7.02 Tax
Representations. LMC Animal
Planet represents and warrants to IDT Parent that:
(a) Filing
and Payment. All material Returns
required to be filed with any Taxing Authority with respect to any Pre-Closing
Tax Period by or on behalf of any of the Seller Subsidiaries have, to the
extent required to be filed on or before the date hereof (taking into account
any extension of time within which to file), been filed when due in accordance
with all Applicable Laws, and such Returns were true and complete in all
material respects. All material Taxes
due and payable by any of the Seller Subsidiaries have been timely paid, or
withheld and remitted to the appropriate Taxing Authority. There are no Liens on any of the assets of
any of the Seller Subsidiaries that arose in connection with any failure (or
alleged failure) to pay any Tax (except for Liens that arise by operation of
law for Taxes not yet due and payable).
(b) Procedure
and Compliance. There is no claim,
audit, action, suit, proceeding or investigation now pending or threatened
against or with respect to any of the Seller Subsidiaries in respect of any
Tax. All deficiencies or assessments
asserted against any of the Seller Subsidiaries by any Taxing Authority have
been paid or fully and finally settled.
(c) Consolidation
and Similar Arrangements. None of
the Seller Subsidiaries has been a member of an affiliated, consolidated,
combined or unitary group other than one of which Liberty Parent was the common
parent. None of the Seller Subsidiaries
has entered into any agreement or arrangement with any Taxing Authority with
regard to the Tax liability of any of the Seller Subsidiaries affecting any Tax
period for which the applicable statute of limitations, after giving effect to
extensions or waivers, has not expired.
(d) Statute
of Limitations. None of the Seller
Subsidiaries has waived any statute of limitations in respect of Taxes or
agreed to any extension of time with respect to a Tax assessment or deficiency.
26
(e) Section 355
Matters. None of the Seller
Subsidiaries has constituted either a distributing corporation or a controlled
corporation in a distribution of stock qualifying for tax-free treatment under
Section 355 of the Code (x) in the two years prior to the date of this
Agreement or (y) in a distribution which could otherwise constitute part of a plan
or series of related transactions (within the meaning of Section 355(e)
of the Code) in conjunction with the transactions contemplated by this
Agreement.
(a) All
Returns required to be filed by LMC Animal Planet or any of its Affiliates on
or after the Closing Date with respect to each of the Seller Subsidiaries with
respect to any Pre-Closing Tax Period (i) will be filed when due in accordance
with all Applicable Laws and (ii) will be true and complete in all material
respects.
(b) LMC
Animal Planet shall cause Liberty Parent to include each of the Seller
Subsidiaries in its consolidated Federal Tax Return and in any Combined Tax
Return through the close of business on the Closing Date.
(c) Neither
LMC Animal Planet nor any of its Affiliates will take any position on any
federal, state, local or foreign income or franchise Return, or take any other
Tax reporting position that is inconsistent with the treatment of each of the
Mergers as a reorganization within the meaning of Section 368(a) of the
Code, unless otherwise required by a Final Determination.
Section 7.04 Tax
Sharing. Any and all existing Tax Sharing Agreements
(other than this Agreement) shall be terminated with respect to each of the
Seller Subsidiaries as of the Closing Date, and after the Closing Date, none of
the Seller Subsidiaries shall have any further rights or liabilities
thereunder.
Section 7.05 Cooperation
On Tax Matters.
(a) IDT
Parent and LMC Animal Planet shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the preparation and
filing of any Return, and any audit, litigation or other proceeding with
respect to Taxes. Such cooperation shall
include the retention and (upon the other partys request) the provision of records
and information which are reasonably relevant to any such audit, litigation or
other proceeding and making employees available on a mutually convenient basis
to provide additional information and explanation of any material provided
hereunder. IDT Parent and LMC Animal
Planet agree (i) to retain all books and records with respect to Tax matters
pertinent to each of the Seller Subsidiaries relating to any Pre-Closing Tax
Period, and to abide by all record retention agreements entered into with any Taxing
Authority, and (ii) to give the other party reasonable written notice prior to
destroying or discarding any such books and records and, if the other party so
requests, IDT Parent or LMC Animal Planet, as the case may be, shall allow the
other party to take possession of such books and records.
(b) IDT
Parent and LMC Animal Planet further agree, upon request, to use all reasonable
efforts to obtain any certificate or other document from any Governmental
27
Entity or any other person as
may be necessary to mitigate, reduce or eliminate any Tax that could be imposed
(including but not limited to with respect to the transactions contemplated
hereby).
Section 7.06 Tax
Indemnification.
(a) LMC
Animal Planet hereby indemnifies IDT Parent and its Affiliates (each a Purchaser Indemnitee) against and agrees
to hold each Purchaser Indemnitee harmless from any (w) Tax of any of the
Seller Subsidiaries described in clause (i) of the definition of Tax related to
a Pre-Closing Tax Period, (x) Tax described in clause (ii) or (iii) of the
definition of Tax, (y) Tax of any of the Seller Subsidiaries resulting from a
breach of the provisions of Section 7.02, Section 7.03 or Section 7.04
and (z) liabilities, costs, expenses (including, without limitation, reasonable
expenses of investigation and attorneys fees and expenses), losses, damages,
assessments, settlements or judgments arising out of or incident to the
imposition, assessment or assertion of any Tax described in clause (w), (x) or
(y) above, (the sum of clauses (w), (x), (y) and (z) being referred to herein
as a Purchaser Loss); provided,
however, that LMC Animal Planet shall not have any indemnity obligation under
this Section 7.06(a) in the event such Purchaser Loss results from a
breach by IDT Parent or any of its Affiliates of any of the representations and
warranties contained in Section 7.08(a) or the covenants contained in Section 7.08(b).
(b) For
purposes of this Section 7.06, in the case of any Taxes that are imposed
on a periodic basis and are payable for a Tax period that includes (but does
not end on) the Closing Date, the portion of such Tax related to the portion of
such Tax period ending on and including the Closing Date shall (x) in the case
of any Taxes other than gross receipts, sales or use Taxes and Taxes based upon
or related to income, be deemed to be the amount of such Tax for the entire Tax
period multiplied by a fraction the numerator of which is the number of days in
the Tax period ending on and including the Closing Date and the denominator of
which is the number of days in the entire Tax period, and (y) in the case of
any Tax based upon or related to income and any gross receipts, sales or use
Tax, be deemed equal to the amount which would be payable if the relevant Tax
period ended on and included the Closing Date.
All determinations necessary to give effect to the allocation set forth
in the foregoing clause (y) shall be made in a manner consistent with prior
practice of LMC Animal Planet.
(c) Not
later than 5 days after receipt by LMC Animal Planet of written notice from
Purchaser Indemnitee stating that any Purchaser Loss has been incurred by a
Purchaser Indemnitee and the amount thereof and of the indemnity payment
requested, LMC Animal Planet shall discharge its obligation to indemnify the
Purchaser Indemnitee against such Purchaser Loss by paying to Purchaser
Indemnitee an amount equal to the amount of such Purchaser Loss. The payment by a Purchaser Indemnitee of any
Purchaser Loss shall not relieve LMC Animal Planet of its obligations under
this Section 7.06.
(d) Purchaser
Indemnitee shall give prompt notice to LMC Animal Planet of any Purchaser Loss
or the assertion of any claim, or the commencement of any suit,
28
action or proceeding in respect
of which indemnity may be sought under this Section 7.06 which Purchaser
Indemnitee deems to be within the ambit of this Section 7.06 (specifying
with reasonable particularity the basis therefor) and will give LMC Animal
Planet such information with respect thereto as LMC Animal Planet may
reasonably request. LMC Animal Planet
may, at its own expense, participate in and upon notice to Purchaser Indemnitee,
assume the defense of any such suit, action or proceeding (including any Tax
audit) in so far as it relates to the Purchaser Loss; provided that (x) counsel
for LMC Animal Planet is reasonably satisfactory to Purchaser Indemnitee, (y)
LMC Animal Planet shall thereafter consult with Purchaser Indemnitee upon
Purchaser Indemnitees reasonable request for such consultation from time to
time with respect to such suit, action or proceeding (including any Tax audit)
and (z) LMC Animal Planet shall not, without Purchaser Indemnitees consent, agree
to any settlement with respect to any Purchaser Loss if such settlement could
adversely affect the Tax liability of Purchaser Indemnitee or any of its
Affiliates. If LMC Animal Planet assumes
such defense, (i) Purchaser Indemnitee shall have the right (but not the duty)
to participate in the defense thereof and to employ counsel, at its own
expense, separate from the counsel employed by LMC Animal Planet and (ii) LMC
Animal Planet shall not assert that the Purchaser Loss, or any portion thereof,
with respect to which Purchaser Indemnitee seeks indemnification is not within
the ambit of this Section 7.06. If
LMC Animal Planet elects not to assume such defense, Purchaser Indemnitee may
pay, compromise or contest the Purchaser Loss at issue. LMC Animal Planet shall be liable for the
reasonable fees and expenses of counsel employed by Purchaser Indemnitee for
any period during which LMC Animal Planet has not assumed the defense
thereof. Whether or not LMC Animal Planet
chooses to defend or prosecute any claim, all of the parties hereto shall
cooperate in the defense or prosecution thereof.
(e) LMC
Animal Planet shall not be liable under this Section 7.06 with respect to
any Purchaser Loss resulting from a claim or demand the defense of which LMC
Animal Planet was not offered the opportunity to assume as provided under Section 7.06(d)
to the extent LMC Animal Planets liability under this Section 7.06 is
materially adversely affected as a result thereof. No investigation by IDT Parent or any of its
Affiliates at or prior to the Closing Date shall relieve LMC Animal Planet of
any liability hereunder.
(f) Any
claim of any Purchaser Indemnitee under this Section 7.06 may be made and
enforced by IDT Parent on behalf of such Purchaser Indemnitee.
Section 7.07 Purchase
Price Adjustment. Any amount paid by LMC Animal Planet or IDT
Parent under this Article 7 or 9 will be treated as an adjustment to the
consideration delivered in the Mergers unless a Final Determination or change
in Applicable Law (including a revenue ruling or other similar pronouncement)
causes any such amount not to constitute an adjustment to the consideration
delivered in the Mergers for any applicable Tax purposes.
29
Section 7.08 IDT
Parent Representations, Warranties and Covenants.
(a) Representations
and Warranties. IDT Parent
represents and warrants to LMC Animal Planet that:
(i) Each
of the IDT Subsidiaries is a corporation for U.S. federal income tax purposes
and is wholly owned directly by IDT Parent.
(ii) IDT
Parent and its Affiliates have no plan or intention to cause any of the
Surviving Entities to issue additional shares of their capital stock that would
result in IDT Parent losing Control of any of the Surviving Entities.
(iii) Each
of the IDT Subsidiaries is a newly formed corporation formed solely for the
purpose of engaging in its respective Merger and has engaged in no business
activity or operations of any kind other than in connection with its formation
and this Agreement. At no time prior to
the Effective Time of its respective Merger will any IDT Subsidiary have had
any assets (other than nominal assets contributed upon its formation, which
assets will be transferred to the Surviving Entity in its respective Merger). Except for obligations or liabilities incurred
in connection with the transactions contemplated by this Agreement, none of the
IDT Subsidiaries has incurred, directly or indirectly, any obligations or
liabilities.
(iv) Neither
IDT Parent, nor any person related to IDT Parent within the meaning of Section 1.368-1(e)(3)
of the Treasury Regulations, has any plan or intention to redeem, purchase,
exchange or otherwise acquire any of the Consideration Shares issued in the
Mergers, either directly or through any partnership or other transaction,
agreement or arrangement with any other person, other than pursuant to open
market purchases as part of a general stock buy back program in which the
sellers are anonymous.
(v) As
part of the same plan as the Mergers, IDT Parent or a member of IDT Parents
qualified group of corporations (as defined in Treasury Regulations Section 1.368-1(d)(4)(ii))
will continue each of the Seller Subsidiaries historic business or use a significant
portion of each of the Seller Subsidiaries historic business assets in a
business, as such terms are defined in Treasury Regulations Section 1.368-1(d)(2)
and (3).
(vi) IDT
Parent and its Affiliates have no plan or intention to cause any of the
Surviving Entities to: (A) liquidate; (B)
merge with or into another corporation or entity; or (C) sell, exchange or
otherwise dispose of any of its assets, except for transfers of assets
described in Treasury Regulations Section 1.368-2(k).
(vii) IDT
Parent and its Affiliates have no plan or intention to sell,
exchange or otherwise dispose of any of the capital stock of any of the
Surviving Entities, except for transfers of capital stock described in Treasury
Regulations Section 1.368-2(k).
30
(viii) IDT
Parent has no plan or intention to: (A)
liquidate; (B) merge with or into another corporation or entity; or (C) sell or
otherwise dispose of all or substantially all of its assets.
(ix) Each
of IDT Parent and each IDT Subsidiary will pay its expenses, if any, incurred
in connection with the Mergers.
(x) There
is no intercorporate indebtedness existing between IDT Parent (or any of its Affiliates) and any of the Seller Subsidiaries
that was issued, acquired or will be settled at a discount.
(xi) Neither
IDT Parent nor any of the IDT Subsidiaries is an investment company as defined
in Section 368(a)(2)(F)(iii) and (iv) of the Code.
(xii) Neither
IDT Parent nor any of the IDT Subsidiaries is under the jurisdiction of a court
in a case under Title 11 of the United States Code, or a receivership,
foreclosure, or similar proceeding in a federal or state court.
(b) Covenants.
(i) IDT
Parent and its Affiliates will comply with all record-keeping and reporting
requirements applicable to the Mergers set forth in Treasury Regulation Section 1.368-3.
(ii) Neither
IDT Parent nor any of its Affiliates will take any position on any federal,
state, local or foreign income or franchise Return, or take any other Tax
reporting position that is inconsistent with the treatment of each of the
Mergers as a reorganization within the meaning of Section 368(a) of the
Code, unless otherwise required by a Final Determination.
(iii) Neither
IDT Parent nor any of its Affiliates will take or cause to be taken any action
as part of the same plan as the Mergers that would reasonably be expected to
cause any of the Mergers to fail to qualify as a reorganization within the
meaning of Section 368(a) of the Code.
(iv) Neither
IDT Parent nor any of its Affiliates (including, after the Closing, the
Surviving Entities) shall effect or engage in any transactions or other actions
(other than the actions contemplated by this Agreement) relating to any
Surviving Entity out of the ordinary course of business on the Closing Date.
Section 7.09 Transfer
Taxes. One-half of all
transfer Taxes and fees (including any penalties and interest) incurred in
connection with transactions contemplated by this Agreement shall be paid by
LMC Animal Planet, and one-half of all transfer Taxes and fees (including any
penalties and interest) incurred in connection with transactions contemplated
by this Agreement shall be paid by IDT Parent, in each case, when due. LMC
Animal Planet will, at its own expense, file (or cause its Affiliates to file)
all necessary Returns and other documentation with respect to all such Taxes
and fees, and,
31
if required by Applicable Law,
IDT Parent will, and will cause its Affiliates to, join in the execution of any
such Returns and other documentation.
Section 7.10 Survival. Notwithstanding anything in this Agreement to
the contrary, (a) the representations and warranties of the parties contained
in this Article 7 shall survive for the full period of all applicable
statutes of limitations (giving effect to any waiver, mitigation or extension
thereof), and (b) the covenants and agreements of the parties in this Article 7
will survive the Closing without limitation unless otherwise contemplated by
their terms.
Section 8.01 Employee
Benefit Plans Representations.
LMC Animal Planet represents and warrants to IDT Parent that the
transactions contemplated by this Agreement are not transactions described in Section 4063
or 4069 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), and none of the Surviving Entities
nor any of their respective Affiliates will have or be subject to any liability
under Title IV of ERISA with respect to any plan sponsored, maintained or
contributed to by any person under common control with any Seller Subsidiary
prior to the Effective Time of the Merger to which such Seller Subsidiary is
party, within the meaning of Section 4001(a)(14) of ERISA.
Section 9.01 Indemnification
by each of IDT Parent and each IDT Subsidiary. Each of IDT Parent and each IDT Subsidiary
covenants and agrees, jointly and severally, to defend, indemnify and save and
hold harmless LMC Animal Planet, together with its shareholders, partners, trustees,
beneficial owners, attorneys and Representatives from and against any and all
losses, costs, expenses, liabilities, claims or legal damages (including,
without limitation, reasonable fees and disbursements of counsel and
accountants and other costs and expenses incident to any actual or threatened
claim, suit, action or proceeding, whether incurred in connection with a claim
against LMC Animal Planet or a Seller Subsidiary, or a third party claim)
arising out of or resulting from (i) any inaccuracy in or breach of any
representation or warranty made by IDT Parent or any IDT Subsidiary in this
Agreement or in any writing delivered pursuant to this Agreement (other than in
respect of any representation or warranty made pursuant to Article 7, as
to which this Section 9.01 shall not apply), and (ii) the failure of IDT
Parent or any IDT Subsidiary to perform or observe fully any covenant,
agreement or provisions to be performed or observed by it pursuant to this
Agreement (other than any covenant, agreement or provision made pursuant to Article 7
of this Agreement, as to which this Section 9.01 shall not apply);
provided, that the indemnity agreement contained in this Section 9.01
shall not apply to amounts paid in settlement of any such loss, claims, damage,
liability or action if such settlement is effected without the consent of IDT
Parent (which consent shall not be unreasonably withheld). Notwithstanding anything to the contrary
contained herein, IDT Parent and the IDT Subsidiaries shall not be liable for
32
any indemnification payments pursuant to this Section 9.01 in the
aggregate in excess of $60 million; provided, however, that there shall be no
limitation on indemnification amounts payable by IDT Parent or any IDT
Subsidiary pursuant to this Section 9.01 for any breach of the
representations and warranties contained in Sections 5.02 (c), (d) and (f).
Section 9.02 Indemnification
by LMC Animal Planet. LMC Animal Planet covenants and agrees to
defend, indemnify and save and hold harmless IDT Parent and each IDT
Subsidiary, together with their respective shareholders, partners, trustees,
beneficial owners, attorneys and Representatives from and against any and all
losses, costs, expenses, liabilities, claims or legal damages (including,
without limitation, reasonable fees and disbursements of counsel and
accountants and other costs and expenses incident to any actual or threatened
claim, suit, action or proceeding, whether incurred in connection with a claim
against IDT Parent or an IDT Subsidiary, or a third party claim), arising out
of or resulting from (i) any inaccuracy in or breach of any representation or
warranty made by LMC Animal Planet in this Agreement or in any writing
delivered pursuant to this Agreement (other than in respect of any
representation, warranty made pursuant to Article 7, as to which this Section 9.02
shall not apply), and (ii) the failure of LMC Animal Planet to perform or
observe fully any covenant, agreement or provisions to be performed or observed
by it pursuant to this Agreement (other than any covenant, agreement or
provision made pursuant to Article 7 of this Agreement, as to which this Section 9.02
shall not apply); provided, that the indemnity agreement contained in this Section 9.02
shall not apply to amounts paid in settlement of any such loss, claims, damage,
liability or action if such settlement is effected without the consent of LMC
Animal Planet (which consent shall not be unreasonably withheld). Notwithstanding anything to the contrary
contained herein, LMC Animal Planet shall not be liable for any indemnification
payments pursuant to this Section 9.02 in the aggregate in excess of $60
million; provided, however, that there shall be no limitation on indemnification
amounts payable by LMC Animal Planet pursuant to this Section 9.02 for any
breach of the representations and warranties contained in Section 4.02,
the first four sentences of Section 4.03(a) and Article 8.
Section 9.03 Procedure. Each party or person entitled to be
indemnified pursuant to this Article 9 (each, an Indemnified Person) shall notify each
other party to this Agreement in writing of any action against such Indemnified
Person in respect of which such other party (each, an Indemnifying Person) is or may be
obligated to provide indemnification on account of this Article 9,
promptly after the receipt of notice of such action. The failure of any Indemnified Person so to
notify an Indemnifying Person of any such action shall not relieve such
Indemnifying Person from any liability which it may have to such Indemnified
Person, except to the extent such Indemnifying Person shall have been
materially prejudiced by the failure of such Indemnified Person so to notify
it, pursuant to this Section 9.03.
In case any such action shall be brought against any Indemnified Person
and it shall notify the Indemnifying Persons of the commencement thereof, the
Indemnifying Persons shall be entitled to participate in the defense thereof
and, to the extent that the Indemnifying Persons may wish to assume the defense
thereof, with counsel reasonably satisfactory to such Indemnified Person, and
after notice to such Indemnified Person of their election so to assume the
defense thereof,
33
the Indemnifying Persons will not be liable to such Indemnified Person
under this Article 9 for any legal or other expense subsequently incurred
by such Indemnified Person in connection with the defense thereof; provided,
however, that (i) if the Indemnifying Persons shall elect not to assume the
defense of such claim or action or (ii) if the Indemnified Person reasonably
determines (x) that there may be a conflict between the positions of the
Indemnifying Persons and of the Indemnified Person in defending such claim or
action or (y) that there may be legal defenses available to such Indemnified
Person different from or in addition to those available to the Indemnifying
Persons, then separate counsel for the Indemnified Person shall be entitled to
participate in and conduct the defense, in the case of (i) and (ii)(x), or such
different defenses, in the case of (ii)(y), and the Indemnifying Persons shall
be liable for any reasonable legal or other expenses incurred by the Indemnified
Person in connection therewith.
Section 9.04 Exclusivity
of Remedy. The indemnification provisions set forth in
Articles 7 and 9 are the sole and exclusive remedy for breach of any and all
representations and warranties contained in this Agreement; provided, however,
that the foregoing indemnification provisions are in addition to, and not in
derogation of, any statutory, equitable, or common law remedy any party may
have for breach of any and all covenants and agreements contained in this
Agreement. Notwithstanding anything in
this Agreement to the contrary, neither LMC Animal Planet or any Seller
Subsidiary, on the one hand, nor IDT Parent or any IDT Subsidiary, on the other
hand, shall be liable to the other for any indirect, punitive, special, consequential
or incidental damages under any provision of this Agreement or for any
indirect, punitive, special, consequential or incidental damages arising out of
any act or failure to act hereunder, even if such party has been advised of or
has foreseen the possibility of such damages.
Section 9.05 Certain
Limitations. The
indemnification obligations of the parties hereto with respect to claims
asserted for any breach of a representation or warranty set forth in Article 4
or 5 prior to expiration of the survival period applicable to such
representation or warranty shall survive until such claims are finally
adjudicated or otherwise resolved.
Section 9.06 Method
of Payment for Certain Indemnification Payments. Any indemnification payments to be made by
IDT Parent or an IDT Subsidiary pursuant to Article 9 shall be made by
delivering shares of IDT Parent Class B Common Stock. Any shares of IDT Parent Class B Common Stock
to be delivered pursuant to this Section 9.06 shall be valued based on the
weighted average (based on trading volume) of the daily closing prices (as of
4:00 p.m. eastern time) per share of IDT Parent Class B Common Stock as
reported on the NYSE (as published in the Wall Street Journal, or if not
published therein or incorrectly published therein, in another authoritative
source mutually selected by IDT Parent and LMC Animal Planet) for the twenty
consecutive trading days ending on the second trading day prior to the date on
which such indemnification payment is made by IDT Parent or an IDT Subsidiary. All such shares of IDT Parent Class B Common
Stock so delivered pursuant to this Section 9.06 shall be duly authorized,
fully paid, and non-assessable, shall be issued in compliance with all
Applicable Law and not be subject to any Liens and shall be treated as
Registrable
34
Securities (as defined in the Registration Rights
Agreement) for all purposes under the Registration Rights Agreement.
Section 10.01 Termination.
(a) This
Agreement may be terminated and the Mergers may be abandoned at any time prior
to the Effective Time of the Mergers:
(i) by mutual written agreement of LMC Animal Planet and IDT Parent, at
any time prior to the Closing Date, or (ii) by LMC Animal Planet or IDT Parent
if the Closing has not occurred on or prior to February 28, 2005 (the Outside Date), or if any Governmental
Entity shall have issued a nonappealable final order, decree or ruling or taken
any other action having the effect of permanently restraining, enjoining or
otherwise prohibiting the Mergers; provided, that the right to terminate this
Agreement pursuant to the foregoing clause (ii) shall not be available to any
party whose breach of a representation or warranty or failure to fulfill any
agreement or obligation under this Agreement was the cause of or resulted in
the failure of the Closing to occur by the Outside Date. Any party desiring to terminate this
Agreement pursuant to this Section 10.01(a) shall promptly give notice of
such termination to the other parties hereto.
(b) If
this Agreement is terminated as permitted by Section 10.01(a), such
termination shall be without liability of any party to this Agreement (or its
Representatives) to any other party to this Agreement (or its Representatives),
except with respect to any losses (excluding consequential, indirect, special
or incidental damages) that a party (or its Representatives) may incur or
suffer as a result of another partys breach of this Agreement, including,
without limitation, (i) any willful failure of the breaching party to fulfill a
condition to the performance of the obligations of the non-breaching party,
(ii) any failure by the breaching party to perform a covenant made by it in
this Agreement or (iii) any breach by the breaching party of any of its
representations or warranties contained herein.
The provisions of Sections 6.03, 6.05, 11.03 and 11.13 and this Article 10
shall survive any termination of this Agreement.
Section 11.01 Successors
and Assigns. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement may not be assigned by any
party hereto without the prior written consent of the other parties hereto and
the attempted or purported assignment shall be void. Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the parties hereto or
their respective successors and permitted assigns, any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
35
Section 11.02 Survival. Except as expressly provided otherwise herein,
and subject to Section 7.10, (i) the representations and warranties of the
parties set forth in this Agreement, other than the representations and
warranties set forth in Section 5.02(f) which shall survive the Closing
indefinitely, shall survive the Closing for a period of three years after the
Closing Date, and (ii) the covenants and agreements of the parties set forth in
this Agreement shall survive the Closing indefinitely.
Section 11.03 Governing
Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of law thereof.
Section 11.04 Counterparts;
Effectiveness. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument. Signature pages from separate identical
counterparts may be combined with the same effect as if the parties signing
such signature page had signed the same counterpart. This Agreement shall
become effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto.
Section 11.05 Captions
and Headings. The captions
and headings used in this Agreement are for convenience only and are not to be
considered in construing or interpreting this Agreement.
Section 11.06 Notices. Unless otherwise provided herein, any notice
or other communication required or permitted to be given or effected under this
Agreement shall be in writing and shall be deemed effective upon personal or
facsimile delivery to the party to be notified or one Business Day after
deposit with an internationally recognized courier service, delivery fees
prepaid, or three Business Days after deposit with the U.S. mail, return
receipt requested, postage prepaid, and in each case, addressed to the party to
be notified at the following respective addresses, or at such other addresses
or to such other parties as may be designated by written notice by the parties hereto,
provided that any notice of change of address shall be deemed effective only
upon receipt:
If to IDT
Parent or any IDT Subsidiary, to:
IDT
Corporation
520 Broad Street
Newark, New Jersey 07102
Attn: Ely Tendler, Esq.
Telephone: (973) 438-3616
Fax: (973) 438-1616
36
[Name of
applicable IDT Subsidiary]
c/o IDT Corporation
520 Broad Street
Newark, New Jersey 07102
Attn: Ely Tendler, Esq.
Telephone: (973) 438-3616
Fax: (973) 438-1616
with a copy to:
Mound, Cotton,
Wollan & Greengrass
One Battery
Park Plaza
New York, New
York 1004
Attn: Thomas R. Weinberger
Telephone: (212) 804-4260
Fax: (212) 344-8066
If to LMC
Animal Planet, to:
LMC Animal
Planet, Inc.
c/o Liberty Media Corporation
12300 Liberty Boulevard
Englewood, Colorado 80112
Attn: Charles Y. Tanabe
Telephone: (720) 875-5400
Fax: (720) 875-5858
with a copy to:
Baker Botts,
L.L.P.
30 Rockefeller Plaza
New York, New York 10112-4998
Attn: Robert W. Murray Jr.
Telephone: (212) 408-2500
Fax: (212) 408-2501
If to any
Seller Subsidiary, to:
[Name of
applicable Seller Subsidiary]
c/o Liberty Media Corporation
12300 Liberty Boulevard
Englewood, Colorado 80112
Attn: Charles Y. Tanabe
Telephone: (720) 875-5400
Fax: (720) 875-5858
with a copy to:
37
Baker Botts,
L.L.P.
30 Rockefeller Plaza
New York, New York 10112-4998
Attn: Robert W. Murray Jr.
Telephone: (212) 408-2500
Fax: (212) 408-2501
Section 11.07 Amendments
and Waivers. All terms of
this Agreement may be amended, and the observance of any term of this Agreement
may be waived (either generally or in a particular instance or either
retroactively or prospectively), only with the written consent of each of LMC
Animal Planet and IDT Parent. Any
amendment or waiver effected in accordance with this Section 11.07
shall be binding upon each party to this Agreement.
Section 11.08 Severability. If one or more provisions of this Agreement
are held to be unenforceable under Applicable Law, such provisions shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
Section 11.09 Entire
Agreement. This Agreement (and the Exhibits and
Schedules hereto) and the Registration Rights Agreement constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements, understanding and discussions among the parties
with respect thereto.
Section 11.10 Specific
Enforcement. The parties hereto agree that irreparable
harm would occur in the event that any provision of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which the parties are entitled at law
or in equity.
Section 11.11 Expenses. Except as otherwise expressly set forth in
this Agreement, all costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
Section 11.12 Further
Assurances. At and after the
Effective Time of each Merger, the officers of the Surviving Entity of such
Merger will be authorized to execute and deliver, in the name and on behalf of
the Seller Subsidiary party to such Merger or the IDT Subsidiary party to such
Merger, any deeds, bills of sale, assignments or assurances and to take and do,
in the name and on behalf of such Seller Subsidiary or such IDT Subsidiary, any
other actions and things to vest, perfect or confirm of record or otherwise in
such Surviving Entity any and all right, title and interest in, to and under
any of the rights, properties or assets of such Seller Subsidiary or such IDT
Subsidiary acquired or to be acquired by such Surviving Entity as a result of,
or in connection with, such Merger.
38
Section 11.13 Waiver
of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. THIS SECTION 11.13
HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS
SHALL NOT BE SUBJECT TO ANY EXCEPTIONS.
EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY
HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATION TO
(OR ASSIGNMENTS OF) THIS AGREEMENT. IN
THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL (WITHOUT A JURY) BY THE COURT.
Section 11.14 Third
Party Beneficiaries. Except
as otherwise expressly set forth in this Agreement, this Agreement is not
intended to confer any rights or remedies upon any person other than the
parties hereto.
[Signature page immediately follows.]
39
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed.
LMC ANIMAL PLANET, INC.
|
IDT CORPORATION
|
|
|
|
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By:
|
/s/ Albert Rosenthaler
|
|
By:
|
/s/ Ira A. Greenstein
|
|
Name: Albert Rosenthaler
|
Name: Ira A. Greenstein
|
Title: Senior Vice President
|
Title: President
|
|
|
|
|
LIBERTY N2P, INC.
|
IDT LMC-N2P ACQUISITION I, INC.
|
|
|
|
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By:
|
/s/ Albert Rosenthaler
|
|
By:
|
/s/ Ira A. Greenstein
|
|
Name: Albert Rosenthaler
|
Name: Ira A. Greenstein
|
Title: Senior Vice President
|
Title: Authorized Signatory
|
|
|
|
|
LIBERTY N2P II, INC.
|
IDT LMC-N2P ACQUISITION II, INC.
|
|
|
|
|
By:
|
/s/ Albert Rosenthaler
|
|
By:
|
/s/ Ira A. Greenstein
|
|
Name: Albert Rosenthaler
|
Name: Ira A. Greenstein
|
Title: Senior Vice President
|
Title: Authorized Signatory
|
|
|
|
|
LIBERTY N2P III, INC.
|
IDT LMC-N2P ACQUISITION III, INC.
|
|
|
|
|
By:
|
/s/ Albert Rosenthaler
|
|
By:
|
/s/ Ira A. Greenstein
|
|
Name: Albert Rosenthaler
|
Name: Ira A. Greenstein
|
Title:
Senior Vice President
|
Title:
Authorized Signatory
|
(continues on next page)
40
And solely for purposes of Section 6.07:
LIBERTY
MEDIA CORPORATION
|
|
|
By:
|
/s/ Albert
Rosenthaler
|
|
Name: Albert
Rosenthaler
|
Title:
Senior Vice President
|
|
|
IDT DOMESTIC-UNION,
LLC
|
|
By: IDT Domestic Telecom, Inc., Managing
Member
|
|
By:
|
/s/ Norman Rosenberg
|
|
Name: Norman Rosenberg
|
Title: Chief Financial Officer
|
|
|
IDT
INVESTMENTS, INC.
|
|
|
By:
|
/s/ Gil Boosidan
|
|
Name: Gil Boosidan
|
Title: Treasurer
|
|
|
NTOP HOLDINGS, LLC
|
|
|
By:
|
/s/ Anthony S. Davidson
|
|
Name: Anthony S. Davidson
|
Title: Manager
|
41