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Document Preview Right of First Offer Agreement |
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Title: |
Right of First Offer Agreement |
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Date: |
2004 |
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Preview shows 8KB of 25KB total |
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$43 |
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ID: |
#341823 |
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NTOP HOLDINGS LLC
RIGHT OF FIRST OFFER AGREEMENT
This Right of First Offer Agreement (this ?Agreement?) is entered into as of December 31, 2003, by and among IDT Corporation, a Delaware corporation (?IDT Corporation?), IDT Domestic-Union, LLC, a Delaware limited liability company (?IDT Sub?), IDT Investments Inc., a Nevada corporation (?IDT Investments? and together with IDT Sub, the ?IDT Members?), Liberty Media Corporation, a Delaware corporation (?LMC?), Liberty N2P, Inc., a Delaware corporation (?Liberty N2P?), Liberty N2P II, Inc, a Delaware corporation (?Liberty N2P II? and together with Liberty N2P, the ?Liberty Members?) and NTOP Holdings, LLC, a Delaware limited liability company (the ?Company?).
RECITALS
| 1. | The IDT Members, the Liberty Members, IDT Corporation and LMC are parties to the Second Amended and Restated Limited Liability Company Agreement, dated as of October 19, 2001, of the Company, as amended by Amendment No. 1 thereto, dated as of October 31, 2001, (the ?LLC Agreement?). Capitalized terms used and not otherwise defined in this Agreement have the meanings given to them in the LLC Agreement. |
| 2. | The IDT Members and the Liberty Members constitute all of the members of the Company. As of the date hereof, IDT Sub holds 87 Class A-1 Membership Interests and 13 Class B Membership Interests, IDT Investments holds 6 Class A Membership Interests and 30 Class B Membership Interests, Liberty N2P holds 33 Class A Membership Interests and 97 Class B Membership Interests, Liberty N2P II holds 23 Class A Membership Interests and there are no other outstanding Membership Interests. |
| 3. | The IDT Members and the Liberty Members desire to grant each other reciprocal rights of first offer with respect to their respective Membership Interests on the terms set forth in this Agreement. |
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Definitions. As used in this Agreement, the following terms shall have the meanings indicated:
?Average Market Price?: With respect to any publicly traded security as of any relevant date of determination, the average of the Closing Prices per share or other unit of such security for the period of ten Trading Days ending on and including the third Trading Day prior to such relevant date of determination.
?Business Day?: Any day other than Saturday, Sunday and a day on which banks are required or permitted to close in Denver, Colorado or New York, New York.
?Closing Price?: Of a share or other unit of any security on any Trading Day is (a) the last reported sale price for a share or other unit of such security on such Trading Day as reported on the principal United States securities exchange on which such security is listed or admitted for trading or (b) if such security is not listed or admitted for trading on any such securities exchange, the last reported sale price for a share or other unit of such security on such Trading Day as reported on The Nasdaq Stock Market or (c) if such security is not listed or admitted to trading on any United States securities exchange or The Nasdaq Stock Market, the average of the
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highest bid and lowest asked prices for a share or other unit of such security on such Trading Day in the over-the-counter market as reported by The National Quotation Bureau Incorporated, or any similar organization.
?Fair Market Value?: at any time with respect to any Membership Interest, the value of the distributions that the holder of such Membership Interest would receive pursuant to Section 10.2(iii) of the LLC Agreement upon the hypothetical liquidation of the Company at such time. For purposes of determining the Fair Market Value of any Membership Interest, the Common Stock shall be valued as set forth in Section 10.2 of the LLC Agreement.
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