Attached files
| file | filename |
|---|---|
| 8-K/A - CURRENT REPORT - IDT CORP | f8k121609a1_idt.htm |
| EX-10.01 - AGREEMENT - IDT CORP | f8k121609a1ex10i_idt.htm |
Exhibit 10.02
THIS
WARRANT AND THE SHARES ISSUABLE ON EXERCISE HEREOF HAVE NOT BEEN REGISTERED
UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR
ANY STATE SECURITIES LAW. THE WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND
NEITHER THIS WARRANT NOR ANY SHARES ISSUABLE ON EXERCISE HEREOF MAY BE
TRANSFERRED, SOLD OR OFFERED FOR SALE, IN WHOLE OR IN PART, UNLESS (1) THERE IS
AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITY UNDER THE SECURITIES ACT
AND QUALIFICATION UNDER ANY APPLICABLE STATE SECURITIES LAW, (2) SUCH TRANSFER
IS MADE IN COMPLIANCE WITH RULE 144 UNDER THE SECURITIES ACT AND PURSUANT TO
QUALIFICATION UNDER ANY APPLICABLE STATE SECURITIES LAW OR EXEMPTION THEREFROM,
OR (3) THERE IS AN OPINION OF COUNSEL SATISFACTORY TO IDT OR THE COMPANY, AS
APPLICABLE, THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED AS TO SAID
TRANSFER, SALE OR OFFER.
WARRANT
TO PURCHASE COMMON STOCK
OF
GENIE
ENERGY CORPORATION
EXERCISABLE
COMMENCING ON OCTOBER 21, 2009 AND ENDING ON THE EXPIRATION DATE
By
issuance of this Warrant to purchase common stock of Genie Energy
Corporation, a Delaware corporation (the “Company”), IDT Corporation, a
Delaware corporation (“Grantor” or “IDT”), certifies, for value
received, that James Courter (“Warrantholder”) is, subject to
and in accordance with the terms and conditions herein set forth, the registered
holder of a warrant to purchase up to one thousand (1,000) shares (as adjusted
from time to time in accordance with this Warrant) (the “Warrant Shares”), of the
Company’s common stock, $0.01 par value (“Common Stock”), with the
exercise price (such exercise price per share as adjusted from time to time
being referred to herein as the “Exercise Price”), determined
as provided hereinafter to be paid in shares of Class B common stock, par value
$0.01 per share, of IDT (“IDT
Class B”) or any other shares of IDT or a successor entity into which
Class B common stock shall be exchanged (“Stock Consideration”), at any
time prior to the Expiration Date (as defined in Section 1) at the Grantor’s
principal executive office, with the appropriate form of Notice of Exercise set
forth herein, duly executed and by surrendering shares of Stock Consideration in
payment of the full the Exercise Price, plus transfer taxes, if any, payable by
Warrantholder in accordance with Section 5, in the manner set
forth in Section
1.
1. Exercise;
Expiration and Termination.
1.1 Subject
to adjustment pursuant to Section 3, the initial
Exercise Price shall be 225.13 shares of IDT Class B per Warrant
Share.
1
1.2. This
Warrant may be exercised from time to time, in whole or in part, at the
Grantor’s principal executive office from October 21, 2009 until 5:00 p.m.,
Eastern time, on October 21, 2014 (the “Expiration Date”), by
delivering a duly completed and executed Notice of Exercise in the form attached
hereto (indicating the number of the Warrant Shares to be purchased) and
surrendering the applicable number of shares of Stock Consideration with a stock
power therefor duly executed in blank, plus payment of transfer taxes, if any,
payable by Warrantholder in accordance with Section 5.
1.3 Effective Date of
Exercise. This Warrant will be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above. The person entitled to receive the shares
of Common Stock issuable upon exercise of this Warrant will be treated for all
purposes as the holder of record of such shares as of the close of business on
the date the Warrantholder is deemed to have exercised this
Warrant.
2. Issuance
of Share Certificates. Upon surrender of this Warrant,
delivery of a duly completed and executed form of Notice of Exercise, surrender
of the applicable Stock Consideration along with a stock power therefor duly
executed in blank, IDT shall execute a stock power transferring to the
Warrantholder the appropriate number of Warrant Shares and request that the
Company issue one or more certificates representing such Warrant Shares (“Share Certificates”) in the name of
the tendering Warrantholder or its designee and deliver the Share Certificates
to the tendering Warrantholder or its designee. In case of any
partial exercise of this Warrant, IDT will cancel this Warrant upon surrender
hereof and will execute and deliver a new Warrant of like tenor and date for the
balance of the Warrant Shares purchasable hereunder. If the
securities of the Company deliverable upon exercise of this Warrant have not
been registered for resale under the 1933 Act, any Share Certificate delivered
shall bear appropriate private placement legends thereon, including, without
limitation, a legend in substantially the following form:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE, AND ARE BEING
OFFERED AND SOLD PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND SUCH LAWS. THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR SUCH OTHER LAWS.”
3. Adjustments
to Exercise Price and Number of Warrant Shares. The Exercise
Price, the nature of the Stock Consideration and the number of Warrant Shares
purchasable upon the exercise of this Warrant are subject to adjustment from
time to time upon the occurrence of the events specified in this Section 3.
2
3.1 Adjustments
for Stock Splits and Combinations of the Warrant Shares. If,
while any portion of this Warrant is outstanding, the Company effects a
subdivision of the outstanding Common Stock (or other securities issuable upon
exercise hereof) the Exercise Price then in effect shall be proportionately
decreased and the number of Warrant Shares issuable upon exercise of this
Warrant shall be increased in proportion to such increase of outstanding Common
Stock, and conversely, if, while this Warrant is outstanding, the Company
combines the outstanding Common Stock, the Exercise Price then in effect shall
be proportionately increased and the number of Warrant Shares issuable upon
exercise of this Warrant shall be decreased in proportion to such decrease in
outstanding Common Stock. Any adjustment under this Section 3.1 shall become
effective as of the record date for such event and if such subdivision or
combination is not consummated in full the Exercise Price and the number of
Warrant Shares shall be readjusted accordingly. For purposes of this
Section 3.1, a stock
dividend shall be considered a stock split.
3.2 Adjustment
for Reclassification, Exchange and Substitution of the Warrant Shares. If
the Warrant Shares issuable upon exercise of this Warrant are changed into the
same or a different number of shares of the same or any other class or classes
of stock, whether by reclassification or otherwise (other than a subdivision or
combination of shares provided for in Section 3.1 or a capital
reorganization, merger or consolidation provided for in Section 3.3), or if all or any
portion of the class of securities then purchasable by this Warrant are redeemed
or cease to exist, then and in any such event the Warrantholder shall have the
right thereafter, upon exercise of this Warrant, to receive in lieu of Warrant
Shares the kind and amount of stock and other securities or property receivable
upon such reclassification or other change, in an amount equal to the amount
that the Warrantholder would have been entitled to had this Warrant been
exercised to such extent prior to such event, and the Exercise Price shall be
proportionally adjusted, all subject to further adjustment as set forth
herein.
3.3 Adjustment
for Capital Reorganization, Merger or Consolidation involving the
Company. In case of any capital reorganization of the capital
stock of the Company (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), or any merger or
consolidation of the Company with or into another person or entity, or the sale
of all or substantially all the assets of the Company then, and in each such
case, as a part of such reorganization, merger, consolidation, sale or transfer,
lawful provision will be made so that the holder of this Warrant will thereafter
be entitled to receive upon exercise of this Warrant, during the period
specified herein and upon payment of the Exercise Price then in effect, the
number of shares of stock or other securities or property of the successor
person or entity resulting from such reorganization, merger, consolidation, sale
or transfer that a holder of the shares deliverable upon exercise of this
Warrant would have been entitled to
3
receive
in such reorganization, consolidation, merger, sale or transfer if this Warrant
had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section
3. The foregoing provisions of this Section 3.3 will similarly
apply to successive reorganizations, consolidations, mergers, sales and
transfers and to the stock or securities of any other person or entity that are
at the time receivable upon the exercise of this Warrant. If the
per-share consideration payable to the holder hereof for shares in connection
with any such transaction is in a form other than cash or marketable securities,
then the value of such consideration will be determined reasonably and in good
faith by IDT’s Board of Directors. In all events, appropriate
adjustment (as determined reasonably and in good faith by IDT’s Board of
Directors) will be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Warrantholder after the
transaction, to the end that the provisions of this Warrant will be applicable
after that event, as near as reasonably may be, in relation to any shares or
other property deliverable after that event upon exercise of this
Warrant.
3.4 Adjustments
for Stock Splits and Combinations of the Stock
Consideration. If, while any portion of this Warrant is
outstanding, IDT (or any successor in its capacity as Grantor) effects a
subdivision of the outstanding class of securities then constituting the Stock
Consideration, the Exercise Price then in effect shall be proportionately
increased in proportion to such increase of such class of securities, and
conversely, if, while this Warrant is outstanding, IDT (or any successor in its
capacity as Grantor) combines the outstanding class of securities then
constituting the Stock Consideration, the Exercise Price then in effect shall be
proportionately decreased in proportion to such decrease in such class of
securities. Any adjustment under this Section 3.4 shall become
effective as of the record date for such event and if such subdivision or
combination is not consummated in full the Exercise Price shall be readjusted
accordingly. For purposes of this Section 3.4, a stock dividend
shall be considered a stock split.
3.5 Adjustment
for Capital Reorganization, Merger or Consolidation involving
IDT. In case of any capital reorganization of the capital
stock of IDT (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), or any merger or
consolidation of IDT with or into another person or entity, then, and in each
such case, as a part of such reorganization, merger, consolidation, sale or
transfer, lawful provision will be made so that the holder of this Warrant will
thereafter be entitled to exercise this Warrant by payment or surrender of those
securities or other property received in consideration for the securities that
constituted the Stock Consideration at the time of such event, the terms Stock
Consideration and Exercise shall be appropriately adjusted, any other
corresponding provisions hereof shall be similarly amended and the successor to
IDT shall assume such obligation in connection with such
transaction. The foregoing provisions of this Section 3.5 will similarly
apply to successive reorganizations, consolidations, mergers, sales and
transfers. In all events, appropriate adjustment will be made in the
application of the provisions of this Warrant with respect to the rights and
interests of the Warrantholder after the transaction, to the end that the
provisions of this Warrant will be applicable after that event, as near as
reasonably may be, in relation to any shares or other property deliverable after
that event upon exercise of this Warrant.
4
3.6 Determination
of Adjustment. Any determination as to whether an adjustment
is required to be made under Section 3 to (i) the Exercise
Price in effect hereunder, (ii) the number of Warrant Shares issuable upon
exercise of this Warrant, or (iii) as to the amount of any such adjustment
described in clauses (i) or (ii) of this Section 3.6, shall be binding
upon the Warrantholder and IDT if made in good faith by IDT’s Board of
Directors.
4. Mutilated
or Missing Warrant. If this Warrant shall be mutilated, lost,
stolen or destroyed, IDT shall issue and deliver, in exchange and substitution
for and upon cancellation of the mutilated Warrant, or in lieu of and
substitution for the lost, stolen or destroyed Warrant, a new warrant of like
tenor, but only upon receipt of evidence reasonably satisfactory to IDT of such
loss, theft or destruction of this Warrant and an indemnity, if requested,
reasonably satisfactory to IDT. The applicant shall also comply with
such other reasonable regulations and pay such other reasonable administrative
charges as IDT may prescribe.
5. Payment
of Taxes. IDT will pay all documentary stamp taxes
attributable to the transfer of Common Stock upon the exercise of this Warrant;
provided, however, that IDT
shall not be required to pay any tax or other charges that may be payable in
respect of any transfer involved in the transfer of any securities to, or
delivery of any Share Certificates in a name other than that of the
Warrantholder of record.
6. Restrictions
on Transfer. By accepting this
Warrant, Warrantholder acknowledges that Warrantholder has been advised by IDT
that neither this Warrant nor any Common Stock which may be upon exercise hereof
have been registered under the Securities Act, that the Warrant is being issued
and the Common Stock may be issued on the basis of the statutory exemption
provided by Section 4(2) of the Securities Act or Regulation D promulgated
thereunder, or both, relating to transactions by an issuer not involving any
public offering, and that IDT’s and the Company’s reliance thereon is based in
part upon representations made by Warrantholder. Warrantholder
acknowledges that Warrantholder has been informed by IDT of, or is otherwise
familiar with, the nature of the limitations imposed by the Securities Act and
the rules and regulations thereunder on the transfer of securities.
7. No Rights
as a Shareholder. Nothing contained herein shall be construed
as conferring upon the Warrantholder prior to exercise of this Warrant any
rights whatsoever as a shareholder of the Company, including the right to vote,
to receive dividends, to consent or to receive notices as a shareholder in
respect of any meeting of shareholders for the election of directors of the
Company or any other matter.
8. Notice. Any
notice or other communication hereunder must be given in writing and shall be
deemed to have been given for all purposes (a) upon personal delivery, (b) one
business day after being sent, when sent by professional overnight courier
service from and to locations within the continental United States, or (c) five
days after posting when sent by registered or certified mail (return receipt
requested), addressed to IDT or the Warrantholder as follows:
5
If
to Warrantholder, addressed to:
_____________________________
_____________________________
_____________________________
Attn:
_________________________
Facsimile
No: _________________
If
to IDT, addressed to:
IDT
Corporation
520 Broad
Street
Newark,
New Jersey
Attention:
Legal Department
Facsimile
No.: 973-596-0003
9.
Supplements
and Amendments. Neither this Warrant nor any term hereof may
be changed or waived except pursuant to an instrument in writing signed by the
party against which enforcement of the change or waiver is sought.
10.
Successors. All
the representations, warranties, agreements, covenants and provisions of this
Warrant by or for the benefit of IDT or the Warrantholder shall bind and inure
to the benefit of their respective permitted successors and assigns
hereunder.
11.
Governing
Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New Jersey, excluding any conflicts or
choice of law rules or principles that might refer to the governance or
construction of this Warrant by the law of another jurisdiction. If
any provisions of this Warrant shall be unenforceable or invalid, the same shall
not affect the remaining provisions of this Warrant and, to this end, the
provisions of this Warrant are intended to be and shall be
severable.
12.
Jurisdiction
and Venue. ANY
ACTION OR PROCEEDING IN CONNECTION WITH THIS WARRANT SHALL BE BROUGHT IN A COURT
OF RECORD OF THE STATE OF NEW JERSEY IN THE COUNTY OF ESSEX. THE
PARTIES TO THIS WARRANT HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH
COURTS OF THE STATE OF NEW JERSEY, AND SERVICE OF PROCESS MAY BE MADE UPON THE
PARTIES TO THIS AGREEMENT BY MAILING A COPY OF THE SUMMONS AND ANY COMPLAINT TO
SUCH PERSON, BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT THE
ADDRESS SET FORTH FOR THE PROVISION OF NOTICE HEREIN. BY ACCEPTANCE
HEREOF, THE PARTIES HERETO EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OR MAINTAINING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH JURISDICTION.
6
13. Benefits
of This Warrant. Nothing in this Warrant shall be construed to
give to any person or entity other than IDT and the Warrantholder any legal or
equitable right, remedy or claim under this Warrant; and this Warrant shall be
for the sole and exclusive benefit of IDT and the Warrantholder.
14. Invalidity
of Provisions. If any provision of this Warrant is or becomes
invalid, illegal or unenforceable in any respect, such provision shall be deemed
amended to the extent necessary to cause it to express the intent of the parties
to the maximum possible extent and be valid, legal and
enforceable. The invalidity or deemed amendment of such provision
shall not affect the validity, legality or enforceability of any other provision
hereof.
15. Section
Headings. The section headings contained in this Warrant are
for convenience only and shall be without substantive meaning or
content.
7
IN WITNESS WHEREOF, IDT has
caused this Warrant to be duly executed as of the day and year first above
written.
IDT
CORPORATION
By: /s/ Abilio
Pereira
Name: Abilio
Pereira
Title: CFO,
IDT
ACCEPTED
AND AGREED TO:
/s/James
Courter
James
Courter
8
NOTICE OF
EXERCISE
(To
be executed upon exercise of Warrant)
The
undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
_____________ shares of Common Stock of Genie Energy Corporation, as provided
for therein, and in payment of the Exercise Price thereof, hereby tenders and
transfers ______________ shares of Class B common stock of IDT
Corporation.
Please
issue a certificate or certificates for such securities in the name of (please
print name, address and social security number):
Name: ____________________________________
Address: ____________________________________
Warrantholder:
_____________________________________
Print
name
_____________________________________ Executed
as of ____________, ____.
Signature
(Signature
must conform in all respects to name of holder as specified on the face of the
Warrant tendered with this Notice of Exercise.)