EXHIBIT 7(j)
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of October 19, 2001 (the "Agreement"),
by and between IDT Corporation, a Delaware corporation (the "Company"), and LMC
Animal Planet, Inc., a Colorado corporation ("LMC").
WHEREAS, AT&T Corp., a New York corporation ("AT&T"), acquired shares
of Class B Common Stock, par value $0.01 per share, of the Company (the "Class B
Common Stock"), pursuant to the Option Agreement, dated as of March 3, 2000,
between the Company and AT&T, as amended by the Amendment to Option Agreement,
dated as of April 5, 2000 (the "Option Agreement");
WHEREAS, as a condition to the sale under the Option Agreement, AT&T
agreed to be bound by certain restrictions on transfer of the Class B Common
Stock of the Company, all as set forth in the Lock-Up and Registration Rights
Agreement, dated as of March 20, 2001, by and between the Company and AT&T (the
"Lock-Up and Registration Rights Agreement");
WHEREAS, pursuant to the terms of the Exchange Agreement dated as of
October 19, 2001, by and among Liberty Media Corporation, a Delaware
corporation, LMC, AT&T and Itel Tech, LLC, a Delaware limited liability company
(the "Exchange Agreement"), LMC desires to purchase from AT&T 2,721,089 shares
of Class B Common Stock of the Company owned by AT&T (the "Shares"); and
WHEREAS, the parties wish to adopt certain terms of the Lock-Up and
Registration Rights Agreement regarding restrictions on the transferability of
the Shares.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, LMC and the
Company agree as follows:
1. Notwithstanding Section 2.10 of the Lock-Up and Registration
Rights Agreement, the Company hereby acknowledges and agrees that AT&T may
transfer the Shares to LMC pursuant to the terms of the Exchange Agreement, and
the Company hereby consents to such transfer of the Shares pursuant to the terms
of the Exchange Agreement. For purposes of this Section 1 only, AT&T shall be a
third party beneficiary. For the avoidance of any doubt, all other shares of
Class B Common Stock owned by AT&T will remain subject to the transfer
restrictions contained in the Lock-Up and Registration Rights Agreement. The
parties hereby acknowledge that the Closing Date referred to in the Lock-Up and
Registration Rights Agreement was March 20, 2001.
2. LMC hereby acknowledges and agrees to abide by, be subject to,
the restrictions set forth in Section 2.10 of the Lock-Up and Registration
Rights Agreement relating to the Investor (as such term is defined in the
Lock-Up and Registration Rights Agreement), other than clause (ii) of such
Section 2.10. LMC further acknowledges and agrees that the Shares will be
subject to the terms and restrictions of such Section 2.10 of the Lock-Up and
Registration Rights
Agreement, and that the Company will have the right to enforce such terms and
restrictions against LMC.
3. LMC hereby represents, warrants and acknowledges to the
Company as follows:
3.1 LMC is aware that the Shares have not been registered
under the Securities Act of 1933, as amended (the "Act"), that such offer and
sale are intended to be exempt from registration under the Act and the rules
promulgated thereunder by the Securities and Exchange Commission (the "SEC")
that the Shares cannot be offered, sold, assigned, transferred, or otherwise
disposed of unless they are subsequently registered under the Act or an
exemption from such registration is available. LMC is also aware that sales or
transfers of the Shares are further restricted by state securities laws and the
provisions of the Lock-Up and Registration Rights Agreement and understands and
agrees that the certificates for the Shares will bear appropriate legends
restricting their transfer pursuant to applicable laws and the Lock-up and
Registration Rights Agreement. Such legend shall be substantially in the
following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS, AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL SUCH SHARES ARE REGISTERED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES OR "BLUE SKY" LAWS UNLESS SUCH TRANSFER, PLEDGE OR
HYPOTHECATION IS PERMITTED PURSUANT TO RULE 144 UNDER THE ACT OR
ANOTHER EXEMPTION FROM REGISTRATION UNDER THE ACT AND AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY IS DELIVERED TO THE
COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED AND ARE
SUBJECT TO TRANSFER RESTRICTIONS AS SET FORTH IN A LOCK-UP AND
REGISTRATION RIGHTS AGREEMENT, DATED MARCH 20, 2000, COPIES OF WHICH
MAY BE OBTAINED FROM THE COMPANY."
3.2 LMC understands that there is no established market
for the Shares;
3.3 LMC is an "accredited investor" within the meaning of
Rule 501 of Regulation D of the Act as presently in effect and is acquiring the
Shares for its own account, or for the account of another "accredited investor"
who is an affiliate of LMC and who can make all of the representations contained
herein, for investment purposes only and not with a view to the resale or
distribution thereof;
3.4 LMC has not and will not, directly or indirectly,
offer, sell, transfer, assign, exchange or otherwise dispose of all or any part
of the Shares, except in accordance with applicable federal and state securities
laws and the provisions of the Lock-up and Registration Rights Agreement as long
as such document remains in effect;
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3.5 LMC has such knowledge and experience in financial,
business and tax matters that LMC is capable of evaluating the merits and risks
relating to LMC's investment in the Shares and making an investment decision
with respect to the Company;
3.6 LMC has been given the opportunity to obtain
information and documents relating to the Company and to ask questions of and
receive answers from representatives of the Company concerning the Company and
the investment in the Shares;
3.7 Neither LMC nor any of its affiliates has engaged in
any activity that would be deemed a "general solicitation", with respect to the
Shares, under the provisions of Regulation D;
3.8 LMC 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 Shares and it has determined the Shares are a suitable
investment for LMC and that LMC is able at this time, and in the foreseeable
future, to bear the economic risk of a total loss of its investment in the
Company; and
3.9 LMC is aware that there are substantial risks
incident to an investment in the Shares.
4. No party may assign its rights or obligations under this
Agreement without the prior written consent of each other party hereto. Any such
purported assignment made without such prior written consent shall be null and
void. This Agreement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and permitted assigns. This
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and
permitted assigns.
5. Unless otherwise provided, 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 as may be designated by written notice;
provided that any notice of change of address shall be deemed effective only
upon receipt.
A communication, demand or notice given pursuant to this section 6
shall be addressed:
If to the Company, at:
IDT Corporation
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
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with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxxx, Esq.
Fax: (000) 000-0000
If to LMC:
LMC Animal Planet, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
Liberty Media Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
6. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the conflict
of laws provisions of such laws.
7. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
IDT CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: EVP
LMC ANIMAL PLANET, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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