Exhibit 10.33
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STOCK EXCHANGE AGREEMENT
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by and between
Yahoo! Inc.
and
NET2PHONE, INC.
Dated as of March 30, 2000
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT is made and entered into as of March 30, 2000, by and between Yahoo! Inc., a Delaware corporation (the "Yahoo!"), and Net2Phone, Inc., a Delaware corporation ("Net2Phone").
THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
AUTHORIZATION AND SALE OF STOCK
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Section 1.1 Authorization of the Shares. Yahoo! has authorized the
--------------------------- issuance and exchange of 806,452 shares of Common Stock of Yahoo!, par value $0.001 per share (the "Yahoo! Shares"), at a price per share equal to $186.00, and Net2Phone has authorized the issuance and exchange of 2,777,778 shares of Common Stock of Net2Phone, par value $0.01 per share (the "Net2Phone Shares"), at a price per share equal to $54.00, all pursuant to the terms and conditions of this Agreement.
Section 1.2 Exchange of Shares. Subject to the terms and conditions
------------------ hereof, contemporaneously with the execution of this Agreement, Yahoo! will issue to Net2Phone the Yahoo! Shares in exchange for the Net2Phone Shares, and Net2Phone shall issue to Yahoo! the Net2Phone Shares in exchange for the Yahoo! Shares.
ARTICLE II
CLOSING DATE; DELIVERY
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Section 2.1 Closing Date. The consummation of the exchange of the Yahoo!
------------ Shares and the Net2Phone Shares hereunder (the "Closing") shall be held at the offices of Venture Law Group, A Professional Corporation, 2800 Sand Hill Road, Menlo Park, California, contemporaneously with the execution of this Agreement or at such other time and place as Yahoo! and Net2Phone mutually agree upon in writing (the "Closing Date").
Section 2.2 Delivery. At the Closing, Yahoo! shall deliver to Net2Phone
-------- certificate(s) representing the Yahoo! Shares and Net2Phone shall deliver to Yahoo! certificate(s) representing the Net2Phone Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF YAHOO!
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Yahoo! hereby represents and warrants to Net2Phone, at and as of the date of this Agreement and at and as of the Closing Date, as follows:
Section 3.1 Organization Yahoo! is a corporation duly organized, validly
------------ existing and in good standing under the laws of the State of Delaware and has all requisite corporate power to own, lease and operate its property and to carry on its business as now being conducted and is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the
failure to be so qualified or licensed would be reasonably likely to have a material adverse effect on the business, assets (including intangible assets), liabilities, condition (financial or otherwise), prospects, value, property or results or operations (a "Material Adverse Effect") of Yahoo!.
Section 3.2 Valid Issuance of Common Stock. The Yahoo! Shares, when
------------------------------ issued and paid for in accordance with this Agreement will be duly authorized, validly issued, fully paid, and non-assessable, and issued in compliance with all applicable federal or state securities laws.
Section 3.3 Authority; No Conflict; Required Filings and Consents.
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(a) Yahoo! has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement, including the acquisition of the Net2Phone Shares. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of Yahoo!. This Agreement has been duly executed and delivered by Yahoo!, and constitutes the valid and binding obligation of Yahoo!, enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors' rights generally and by general principles of equity.
(b) The execution and delivery by Yahoo! of this Agreement does not, and consummation of the transactions contemplated by this Agreement will not, (i) conflict with, or result in any violation or breach of any provision of the Certificate of Incorporation or Bylaws of Yahoo!, (ii) result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, contract or other agreement, instrument or obligation to which Yahoo! is a party or by which any of its properties or assets may be bound, or (iii) conflict or violate any permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Yahoo! or any of its properties or assets, except in the case of (ii) and (iii) for any such conflicts, violations, defaults, terminations, cancellations or accelerations which would not be reasonably likely to have a Material Adverse Effect on Yahoo! and its subsidiaries, taken as a whole.
(c) No consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality ("Governmental Entity") is required by or with respect to Yahoo! in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except for (i) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal and state securities laws and the laws of any foreign country, and (ii) such other consents, authorizations, filings, approvals and registrations which, if not obtained or made, would be reasonably expected to have a Material Adverse Effect on Yahoo! and its subsidiaries, taken as a whole.
Section 3.4 Commission Filings; Financial Statements.
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(a) Yahoo! has filed with the Securities and Exchange Commission (the "Commission") and made available to Net2Phone or its representatives all forms, reports and documents required to be filed by Yahoo! with the Commission since June 30, 1999 (collectively, the "Yahoo! Commission Reports"). Yahoo! Commission Reports (i) at the time filed, complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended, (the "Securities Act"), and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the case may be, and (ii) did not at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) Each of the financial statements (including, in each case, any related notes) contained in Yahoo! Commission Reports, including any such Report filed after the date of this Agreement until the Closing, complied as to form in all material respects with the applicable published rules and regulations of the Commission with respect thereto, was prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission) and fairly presented the consolidated financial position of Yahoo! and its subsidiaries as at the respective dates and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not or are not expected to be material in amount.
Section 3.5 Purchase Entirely for Own Account. The Net2Phone Shares to be
--------------------------------- acquired by Yahoo! will be acquired for investment for Yahoo!'s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that Yahoo! has no present intention of selling, granting any participation in, or otherwise distributing the same. Yahoo! further represents that it does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person, with respect to any of the Net2Phone Shares.
Section 3.6 Investment Experience. Yahoo! is an "accredited investor" as
--------------------- defined in Rule 501(a) under the Securities Act. Yahoo! is aware of Net2Phone's business affairs and financial condition and has had access to and has acquired sufficient information about Net2Phone to reach an informed and knowledgeable decision to acquire the Net2Phone Shares. Yahoo! has such business and financial experience as is required to give it the capacity to protect its own interests in connection with the purchase of the Net2Phone Shares.
Section 3.7 Restricted Securities. Yahoo! understands that the Net2Phone
--------------------- Shares are characterized as "restricted securities" under applicable U.S. federal and state securities laws inasmuch as they are being acquired from Net2Phone in a transaction not involving a public offering and that, pursuant to these laws and applicable regulations, Yahoo! must hold the Net2Phone Shares indefinitely unless they are registered with the Commission and qualified by
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state authorities, or an exemption from such registration and qualification requirements is available. Yahoo! further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Net2Phone Shares, and on requirements relating to Net2Phone which are outside of Yahoo!'s control, and which Net2Phone is under no obligation and may not be able to satisfy. In this connection, Yahoo! represents that it is familiar w
