(i) if IDT beneficially owns 85% or less of the voting power of the Company and the Company’s By-laws are not amended, IDT would need the approval of a majority of the disinterested directors serving on the Board of Directors to effect the Merger (as described more fully in the immediately following paragraph) and (ii) if the Merger is approved by the Board of Directors, the holders of Publicly Held Shares (the “Public Stockholders”) who have not tendered their Shares into the Offer would be entitled to vote in the Merger, but IDT would control sufficient voting power to assure that the Merger would be effected if IDT so desired. It should be noted, however, that in these circumstances the Board of Directors would be required to make a determination as to the fairness of the Merger, and IDT could be required to demonstrate that the Merger was both substantively and procedurally fair to the Public Stockholders who have not tendered their Shares into the Offer.
ii) Although the Independent Committee has decided to remain neutral and make no recommendation with respect to the Offer, Messrs. Mellor and King, in their capacity as stockholders of the Company and not as members of the Board of Directors or the Independent Committee, have decided that they will not tender their Shares into the Offer. Mr. Oppenheimer, in his capacity as a stockholder of the Company and not as a member of the Board of Directors or the Independent Committee, has not decided whether to tender his Shares into the Offer.
iii) The Company’s executive officers have not been asked to make a recommendation as to the Offer and have not decided whether to tender their Shares into the Offer. However, Mr. Greenberg and Dr. Weiss have informed the Independent Committee of their intent to tender the Shares they beneficially own into the Offer, and Mssrs. Lando and Pastor have informed the Independent Committee of their intent to not tender the Shares they beneficially own into the Offer.
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lando and pastor are the cable telephony guys, and i would think they saw it as advantageous to let the company run; greenberg saw it as advantageous to be mroe closely associated with idt, and in fact he while being paid as chairman of ntop, is also a paid consultant for idt. that's also in the offer. he was trying to get a signed agreement between ntop and idt re the netspeak patents before the idt offer went public.
idt had its own outside valuation ntop obtained, which was provided to ntop only when ntop's independent committee through fraiden, the kirkland & ellis attorney, did a formal request for it and other material information idt had not disclosed, in june of 2005. the valuation was finalized for idt in december of 2004, and may have related to liberty media -- no one has said why the valuation was obtained, but that is of course when idt got the liberty media ntop shares.
that valution (before deployments this year) was for $2.83. idt does not mention it in any offer to ntop shareholders it prepared. ntop did. idt's offer doesn't include the $18.8 million received from altice after the time of the idt offer but not yet showing on ntop books, or the $29 million more ntop says its contract for altice in the event of a buyout (by cinven) gives it. altice has requested negotiations, and a process going to arbitration (this in ntop's response to the last idt offer at $2.05). in its last conference call, idt did say it was looking forward to reflecting any balances received from altice on its own books, and that the offer to ntop shareholders would "save them the expense of cable telephony deployments" (courter said that). courter didn't say of course, those shareholders would be absent shares. idt cut the conference call off, after taking very long after the announced start point to get it started.
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two other comments:
one last comment -- idt only just went over 50%. it may only do marginally better, or hold its own. a normal company wouldn't want to face independent committee opposition, and the independent committee wouldn't want to be moved into a position of opposition.
Idt said two things:
"All other terms and conditions of the offer remain the same, but without the purchase condition, IDT said it could face obstacles in its efforts to effect the merger."
"In all circumstances, however, IDT is committed to consummating the backend merger, and will explore all options necessary to do so." |
