Exhibit 10.7
AGREEMENT
Agreement dated November 12, 1999 (this "Agreement"), by and
among PICK Communications Corp., with offices at 000 Xxxxx 00 Xxxx, Xxxxx, Xxx
Xxxxxx 00000 ("PICK" or the "Company"), PICKNET, INC., with offices at 000 Xxxxx
00 Xxxx, Xxxxx, Xxx Xxxxxx 00000 ("PICKNET") and IDT Corporation, with offices
at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("IDT").
W I T N E S S E T H
WHEREAS, PICKNET is currently indebted to IDT in the amount of
$2,350,000 consisting of (a) $2,000,000 in Promissory Notes dated February 12,
1998, April 8, 1998 and May 21, 1998 (the "Promissory Notes") (b) accrued
interest on such Promissory Notes from their dates through the date hereof in
the amount of $150,000, and (c) outstanding receivables owed to IDT by PICKNET
through the date hereof in the amount of $200,000 (the "Indebtedness"); and
WHEREAS, such Indebtedness shall be restructured in exchange
for the consideration described herein;
WHEREAS, PICK shall guaranty the Indebtedness pursuant to a
Guaranty Agreement with IDT (the "Guaranty");
WHEREAS, for value received, PICK, PICKNET and IDT desire to
restructure the Indebtedness in accordance with the terms of this Agreement; and
WHEREAS, all share and per share amounts in this Agreement and
any agreements executed pursuant to this Agreement reflect the reverse split on
a one-for-ten basis declared on July 23, 1999.
NOW THEREFORE, in consideration of the foregoing and the
terms, conditions, representations and warranties appearing in this Agreement,
the parties hereto agree as follows:
1. Restructuring of Indebtedness
As consideration for the restructuring of the Indebtedness, PICK and
PICKNET agree as follows:
(a) PICKNET shall deliver to IDT, on the date hereof, its six-month
$2,350,000 promissory note bearing interest at the rate of nine percent (9%) per
annum (the "Note"), a form of which is attached as Exhibit A.
(b) PICK shall pay to IDT, on the date hereof, a restructuring fee of
50,000 shares of its common stock, $.001 par value per share (the "Common
Stock").
(c) [Deleted]
(d) PICK shall issue to IDT 40,000 shares of PICK's Common Stock, in
exchange for IDT's warrants to purchase 400,000 shares of PICK's Common Stock,
which shall be canceled upon such delivery.
(e) In the event PICK elects to exercise its option to extend the
maturity date of the Note from six months to eighteen months as described in the
Note, it shall, upon delivery of notice to IDT of such election, deliver to IDT
$375,000, payable in immediately available funds or, at the option of IDT,
37,500 shares of PICK's Common Stock. If IDT elects to receive payment in cash,
such cash shall be applied to reduce the principal amount of the Indebtedness
then outstanding.
2. Registration; Indemnification.
(a) PICK hereby agrees that as soon as practical, but no later than
October 27, 1999, it will file a registration statement ("Registration
Statement") with the Securities and Exchange Commission covering the Common
Stock that may be issued pursuant to this Agreement. PICK hereby agrees to use
its best efforts to cause the Registration Statement to become effective as soon
as practical after its filing.
(b) In connection with the Registration Statement, the Company will
indemnify IDT as set forth in Exhibit B attached hereto and incorporated herein
by reference.
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3. Representations.
(a) PICK and PICKNET represent and warrant:
(1) This Agreement has been duly authorized, executed and
delivered by PICK and PICKNET and constitutes the legal, valid and binding
obligation of PICK and PICKNET, enforceable in accordance with its terms. This
Agreement has been approved by all necessary corporate action.
(2) The Note has been duly authorized, executed and delivered
by PICKNET and constitutes the legal, valid and binding obligation of PICKNET,
enforceable in accordance with its terms. The Note has been approved by all
necessary corporate action.
(3) The Common Stock issuable pursuant to this Agreement and
the Note, when issued according to the terms of this Agreement or the terms of
the Note, shall be duly and validly issued, fully paid and non-assessable, and
will not subject the holder thereof to personal liability by reason of being
such a holder. There are no preemptive rights of any securityholder of PICK to
acquire the Common Stock issuable to IDT under this Agreement or the Note.
(4) PICK has legally available a sufficient number of
authorized and unissued shares of Common Stock as may be reasonably necessary to
issue the shares of common Stock provided under the terms of this Agreement and
the Note.
(5) The execution and delivery of this Agreement, the Note and
the Guaranty, and the consummation by PICK and PICKNET of the other transactions
contemplated by this Agreement, the Note, and the Guaranty does not and will not
conflict with or result in a breach by PICK of any of the terms or provisions
of, or constitute a default under, PICK's Certificate of Incorporation, or any
indenture, mortgage, deed of trust or other material agreement or instrument
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to which PICK or any of its subsidiaries is a party or by which they or any of
their properties or assets are bound, or any existing applicable law, rule, or
regulation or any applicable decree, judgment or order of any court, or U.S.
federal state or regulatory body, administrative agency, or any other
governmental body having jurisdiction over PICK, its subsidiaries, or any of
their properties or assets, except such conflict, breach or default which would
not have a material adverse effect on the transactions contemplated by this
Agreement or the Note.
(6) No authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization, stock
exchange or market or the shareholders of PICK or PICKNET is required to be
obtained by PICK or PICKNET for the entry into or the performance of this
Agreement, the Note and the Guaranty, except authorizations, approvals, consents
or orders of the SEC with respect to the registration statement referred to in
Section 2 of this Agreement.
(7) There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body pending or, to the
knowledge of PICK or any of its subsidiaries, threatened against or affecting
PICK or any of its subsidiaries, in which an unfavorable decision, ruling or
finding would have a material adverse effect on the transactions contemplated by
this Agreement or the Note, or which would adversely affect the validity or
enforceability of, or the authority or ability of PICK or PICKNET to perform
their obligations under this Agreement, the Note or the Guaranty.
(b) IDT represents and warrants this Agreement has been duly
authorized, executed and delivered by IDT and constitutes the legal, valid and
binding obligation of IDT, enforceable in accordance with its terms. This
Agreement has been approved by all necessary corporate action.
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4. Further Assurances. PICK agrees to use its best efforts (a) to grant terms
and pricing to IDT on terms no less favorable than those granted to the best
customer; and (b) to cause PICKNET to provide IDT, on a first come basis, with
up to 50% of the capacity available to the "Gulfsat" countries.
5. Attorney Fees.
If any amounts owed under this Agreement or under the Note shall not be
paid when due and such matter shall be placed by IDT in the hands of an attorney
for collection, through legal proceedings or otherwise, or if PICK or PICKNET
fails to satisfy any of their respective other obligations under this Agreement
or the Note and an action is brought by IDT with respect thereto, PICK and
PICKNET shall pay reasonable attorney's fees to IDT, together with reasonable
costs and expenses of collection or enforcement.
6. Method of Payment.
All payments of principal and interest on the Note, and all other cash
amounts to be paid by PICKNET to IDT pursuant to this Agreement or the Note
shall be paid by wire transfer in immediately available fund to IDT as follows
(or in such other manner as IDT shall advise PICKNET):
First Union Bank
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
ABA Routing No. 000000000
Swift Code FUNB US33INT
A/C #2079950015213
A/C Name "IDT Corporation"
7. Payment under the Agreement.
Except as explicitly set forth therein or under the Note, no payment
of any amounts by
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PICKNET to IDT pursuant to Section 1(b), 1(d) or 1(e) of this Agreement shall
reduce the principal amount of the Note.
8. Restricted Payments.
Prior to the repayment of all amounts due under this Agreement or under
the Note, neither PICK nor PICKNET shall, nor shall either cause any of its
subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or any other distribution on any of its
capital stock or make any payment or distribution to the direct or indirect
holders of PICK's or PICKNET's capital stock (other than distributions payable
solely in shares of PICK's or PICKNET's common stock or in options, warrants or
other rights to purchase shares of PICK's or PICKNET's Common Stock; or
(b) redeem any shares of PICK's or PICKNET's capital stock.
9. Governing Law.
This Agreement shall be deemed to have been made under and shall be
governed by the laws of the State of New York in all respects and including
matters of construction, validity and performance, but otherwise excluding the
laws of New York regarding conflicts of law.
10. Notices.
All notices to the PICK or PICKNET or to IDT shall be given in writing
by first class registered United States mail, or by a recognized overnight
carrier service, postage prepaid, and sent to their respective addresses set
forth above, or to such other address as either may specify to the other by due
notice.
11. Entire Agreement.
This instrument contains the entire agreement and understanding between
the parties and supersedes all prior agreements. It may be amended, modified or
waived only by an agreement, in
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writing, signed by the party against whom enforcement of any waiver, change,
modification, amendment or discharge is sought, and not orally. The invalidity
or unenforceability of any provision hereof shall not affect the validity or
enforceability of any other provision.
12. Headings.
The headings are for organization, convenience and clarity and shall
have no force or effect upon the construction or interpretation hereof.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement on the date first above written.
PICK COMMUNICATIONS CORP.
By: /s/ Xxxxx Xxxxx
-------------------------------
Chairman
PICKNET, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------
Chairman
Agreed to and Accepted:
IDT Corporation
By: /s/ Xxx Xxxxxxx
----------------------
Xxx Xxxxxxx, President
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EXHIBIT B
INDEMNIFICATION
(a) To the extent permitted by law, the Company will indemnify and hold
harmless IDT, its directors and officers, each person, if any, who controls IDT
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act") or the Securities Exchange Act of 1934 (the "Exchange Act") (each, an
"Indemnified Person"), against any losses, claims, damages, liabilities or
expenses (joint or several) incurred (collectively, "Claims") to which any of
them may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any post-effective amendment thereof or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading, (ii) any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus if used prior to the effective date of such Registration Statement,
or contained in the final prospectus (as amended or supplemented, if the Company
files any amendment thereof or supplement thereto with the Commission) or the
omission or alleged omission to state therein any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state or
foreign securities law or any rule or regulation under the Securities Act, the
Exchange Act or any state or foreign securities law (the matters in foregoing
clauses (i) through (iii) being, collectively, "Violations"). The Company shall,
subject to the
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provisions of Section (b) below, reimburse IDT, promptly as such expenses are
incurred and are due and payable, for any legal and other costs, expenses and
disbursements in giving testimony or furnishing documents in response to a
subpoena or otherwise, including without limitation, the costs, expenses and
disbursements, as and when incurred, of investigating, preparing or defending
any such action, suit, proceeding or investigation (whether or not in connection
with litigation in which IDT is a party), incurred by it in connection with the
investigation or defense of any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section (a) shall not (i) apply to any Claim arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof supplement thereto; (ii) with respect to
any preliminary prospectus, inure to the benefit of any such person from whom
the person asserting any such Claim purchased the registrable securities that
are the subject thereof (or to the benefit of any person controlling such
person) if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected in the final prospectus, as then amended or
supplemented, if such final prospectus was timely made available by the Company;
(iii) be available to the extent that such Claim is based upon a failure of IDT
to deliver or to cause to be delivered the prospectus made available by the
Company, if such prospectus was timely made available by the Company; or (iv)
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
and shall survive the transfer of the securities by IDT.
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(b) Promptly after receipt by an Indemnified Person under this Section
(b) of notice of the commencement of any action (including any governmental
action), such Indemnified Person shall, if a Claim in respect thereof is to be
made against any indemnifying party under this Section (b), deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and to the extent
that the indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person:
provided, however, that an Indemnified Person shall have the right to retain its
own counsel with the fees and expenses to be paid by the indemnifying party, if,
in the reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnifying Person and the indemnifying
party would be inappropriate due to actual or potential differing interests
between such Indemnified Person and any other party represented by such counsel
in such proceeding. In such event, the Company shall pay for only one separate
legal counsel for IDT, and such legal counsel shall be selected by IDT. The
failure to deliver written notice to an indemnifying party with a reasonable
time after the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person under this Section
(b), except to the extent that the indemnifying party is materially prejudiced
in its ability to defend such action. The indemnification required by this
Section (b) shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as such expense, loss, damage or
liability is incurred and is due and payable.
(c) No indemnifying party, in the defense of such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement
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which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Person of any unconditional and
irrevocable release from all liability in respect of such claim or litigation.
(d) To the extent any indemnification by an indemnifying party is
prohibited or limited under applicable law, the indemnifying party agrees to
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage, liability or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the Indemnifying Person on the other hand in connection with the
statements or omissions which resulted in such Claim, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and the Indemnified Person shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the Indemnified Person, and by the party's relative
intent, knowledge, access to information and by the opportunity to correct or
prevent such statement or omission. Notwithstanding the foregoing, (a) no
contribution shall be made under circumstances where the payor would not have
been liable for indemnification under the fault standards set forth in this
Section (b), (c) no seller of registrable securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any seller of registrable securities who
was not guilty of such fraudulent misrepresentation and (c) contribution by any
seller of registrable securities shall be limited in amount to the net proceeds
received by such seller from the sale of such registrable securities. The
Company and IDT agree that it would not be just and equitable if contribution
pursuant to this Section (d) were determined by pro rata allocation (even if IDT
and any underwriters were treated
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as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in this Section.
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