Indemnification Agreement - Talk.com Inc. and Aloysius T. Lawn IV
TALK.COM INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of
March 28, 2001, by and between Talk.com Inc., a Delaware corporation (the
"Company"), and Aloysius T. Lawn IV ("Indemnitee").
WHEREAS, pursuant to that certain employment agreement between
the Company, Talk.com Holding Corp. and Indemnitee dated March 28, 2001 (the
"Employment Agreement") Indemnitee is continuing his service as Executive Vice
President - General Counsel and Secretary of the Company and will perform a
valuable service in such capacity for the Company; and
WHEREAS, the Company desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to serve the
Company and, in order to induce Indemnitee to enter into the Employment
Agreement, the Company agreed to enter into an agreement with Indemnitee
providing for the indemnification of Indemnitee as provided herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the undersigned hereby
agree as follows:
1. Indemnification.
(a) Indemnification of Indemnitee. The Company shall
indemnify and hold harmless Indemnitee to the fullest extent permitted by law if
Indemnitee was or is or becomes a party to, or witness or other participant in,
or is threatened to be made a party to, or witness or other participant in, any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (collectively, hereinafter a "Claim") by
reason of, or arising in whole or in part out of, any event or occurrence
related to the fact that Indemnitee is or was a director, officer, manager,
employee, agent, representative or fiduciary of the Company, a subsidiary of the
Company (a "Subsidiary") or an affiliate (as defined in Rule 405 under the
Securities Act of 1933, as amended) of the Company (an "Affiliate"), or is or
was serving at the request of the Company or any Subsidiary or Affiliate as a
director, officer, manager, employee, agent, representative or fiduciary of
another corporation, limited liability company, partnership, joint venture,
employee benefit plan, trust or other entity or enterprise (collectively, an
"Other Entity"), or by reason of any action or inaction on the part of
Indemnitee while serving in any of such capacities, whether or not the basis of
the Claim is an alleged action in an official capacity as a director, officer,
manager, employee, agent, representative or fiduciary of the Company, or any
Subsidiary, Affiliate or Other Entity (any of the foregoing capacities
referenced in this Section 1(a), an "Indemnified
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Capacity"), against any and all costs, expenses and other amounts actually and
reasonably incurred and/or, as the case may be, paid (including, without
limitation, attorneys' fees and all other costs, expenses and obligations
actually and reasonably incurred in connection with investigating, defending,
being a witness in, or otherwise participating in (including on appeal), or
preparing to defend, any Claim), and judgements, fines, penalties and amounts
paid in connection with the settlement of any Claim and any federal, state,
local or foreign taxes imposed on the Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, including all interest,
assessments and other charges paid or payable by the Indemnitee in connection
with or in respect of such costs, expenses and other amounts (collectively,
hereinafter, the "Expenses"). Without limiting the rights of Indemnitee under
Section 2(a) below, the payment of Expenses actually paid by Employee shall be
made by the Company as soon as practicable, but in any event no later than
thirty (30) days after written demand by Indemnitee therefor is presented to the
Company. Any event giving use to the right of Indemnitee to be indemnified
hereinafter is referred to herein as an "Indemnifiable Event."
(b) Reviewing Party. Notwithstanding the foregoing, (i)
the obligations of the Company under Section 1(a) hereof shall be subject to the
condition that the Reviewing Party (as defined in Section 10(e) hereof) shall
not have determined (in a written opinion, in any case in which the Independent
Legal Counsel (as defined in Section 10(d) hereof) is involved) that Indemnitee
would not be permitted to be indemnified under applicable law, and (ii) the
obligation of the Company to make an advance payment of Expenses to Indemnitee
pursuant to Section 2(a) hereof (an "Expense Advance") shall be subject to the
condition that, if, when and to the extent that the Reviewing Party determines
that Indemnitee would not be permitted to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby
agrees to so reimburse the Company) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee could be indemnified under applicable law, any determination
made by the Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and Indemnitee shall not
be required to reimburse the Company for any Expense Advance until a final
judicial determination is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed). Indemnitee's obligation to
reimburse the Company for any Expense Advance shall be unsecured and no interest
shall be charged thereon. If there has not been a Change in Control (as defined
in Section 10(c) hereof), the Reviewing Party shall be selected by members of
the Board of Directors who are not or were not, as the case may be, a party or
parties, as the case may be, to the Claim in respect of which indemnification is
sought, and if there has been a Change in Control (other than a Change in
Control which has been approved by a majority of the Company's Board of
Directors who were directors immediately prior to such Change in Control), the
Reviewing Party shall be the Independent Legal Counsel. If, within thirty (30)
days after the Company's receipt of written notice from Indemnitee demanding
such indemnification (the "30-Day Period") (i) the Reviewing Party determines
that Indemnitee substantively would not be permitted to be indemnified in whole
or in part under applicable law or makes no determination in that regard or,
(ii) Indemnitee shall not have received full indemnification from the Company,
Indemnitee shall have the right to commence litigation seeking a determination
by a court of competent jurisdiction as to the propriety of indemnification
under the circumstances involved or challenging any such determination (or lack
thereof) by the Reviewing Party or any aspect thereof, including the legal or
factual
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bases therefor or the failure of the Company to fully indemnify the Indemnitee,
and the Company hereby consents to service of process and to appear in any such
proceeding and hereby appoints the Secretary of the Company (or, if such office
is not filled at a time in question, any Assistant Secretary of the Company or,
if such office is not filled at a time in question, any Vice President of the
Company - each, a "Service Receiver") as its agent for such service of process.
Any determination by the Reviewing Party not otherwise so challenged shall be
conclusive and binding on the Company and Indemnitee.
(c) Change in Control. The Company agrees that if there
is a Change in Control (other than a Change in Control which has been approved
by a majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control), then, with respect to all matters thereafter
arising concerning the rights of Indemnitee to payments of Expenses and Expense
Advances under this Agreement or any other agreement or under the Company's
Certificate of Incorporation or Bylaws as now or hereafter in effect, the
Company shall seek legal advice only from the Independent Legal Counsel. Such
counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent Indemnitee would be permitted to be
indemnified under applicable law. The Company agrees to pay the reasonable fees
of the Independent Legal Counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(d) Mandatory Payment of Expenses. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in connection with any Claim,
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by Indemnitee in connection therewith.
2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall advance
all Expenses incurred by Indemnitee so that the Company, and not Indemnitee,
shall be obligated to pay such incurred Expenses. The advances of Expenses to be
made hereunder shall be paid by the Company to Indemnitee as soon as
practicable, but in any event no later than five (5) days after written demand
by Indemnitee therefor to the Company.
(b) Notice and Cooperation by Indemnitee. Indemnitee
shall, as a condition precedent to Indemnitee's right to be indemnified under
this Agreement, give the Company notice in writing as soon as practicable of any
Claim made against Indemnitee for which indemnification will or could be sought
under this Agreement; but the Indemnitee's failure to so notify the Company
shall not relieve the Company from any liability that it may have to Indemnitee
under this Agreement, except to the extent that the Company is able to establish
that its ability to avoid liability under such Claim was prejudiced in a
material respect by such failure. Notice to the Company shall be directed to a
Service Receiver at the address of the Company shown on the signature page of
this Agreement (or such other address as the Company shall designate in writing
to Indemnitee). In addition, Indemnitee shall, at the expense of the Company,
provide the Company with such information and cooperation with respect to a
Claim,
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or any matters related to such Claim, as it may reasonably require in connection
with the indemnification provided for herein and as shall be within Indemnitee's
power. Any costs or expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by Indemnitee in so cooperating shall be borne
by the Company (irrespective of the determination as to Indemnitee's entitlement
to indemnification), which shall pay any such amount within fifteen (15) days
after receiving a request therefor from Indemnitee, and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) No Presumptions; Burden of Proof. For purposes of
this Agreement, the termination of any Claim by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable
law. In addition, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
applicable law, shall be a defense to a claim for indemnification by Indemnitee
hereunder or create a presumption that Indemnitee has not met any particular
standard of conduct or did not have any particular belief. In connection with
any determination by the Reviewing Party or otherwise as to whether Indemnitee
is entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by
the Company of a notice of a Claim pursuant to Section 2(b) hereof, the Company
has one or more policies of liability insurance in effect which may cover such
Claim, the Company shall give prompt notice of the commencement of such Claim to
the applicable insurer(s) in accordance with the procedures set forth in the
applicable policies. The Company shall thereafter take all action necessary or
desirable to cause such insurers to pay, on behalf of Indemnitee, all amounts
payable as a result of such Claim in accordance with the terms of such policies.
(e) Selection of Counsel. In the event that the Company
shall be obligated hereunder to pay the Expenses with respect to any Claim, the
Company, except as otherwise provided below, shall be entitled to assume the
defense of such Claim at its own expense with counsel approved by Indemnitee,
upon the delivery to Indemnitee of written notice of its election so to do.
Indemnitee's approval of such counsel shall not be unreasonably withheld. After
delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently incurred by
the Indemnitee with respect to such Claim, other than as provided below.
Indemnitee shall have the right to employ Indemnitee's own counsel in connection
with a Claim, but the fees and expenses of such counsel incurred after written
notice from the Company of its assumption of the defense thereof shall be at the
expense of Indemnitee, unless (i) the employment of counsel by Indemnitee has
been previously authorized by the Company, or, following a Change in Control
(other than a Change in Control approved by a majority of the members of the
Board of Directors who were directors immediately prior to such Change in
Control), the employment of counsel by Indemnitee has
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been approved by the Independent Legal Counsel, (ii) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense, or (iii) the Company
shall not, in fact, have employed or retained or continued to employ or retain
counsel to assume the defense of such Claim, in each of which cases the fees and
expenses of Indemnitee's counsel shall be at the expense of the Company. The
Company shall not be entitled to assume or control the defense of any Claim
brought by or on behalf of the Company or as to which the Indemnitee has reached
the conclusion that there may be a conflict of interest between the Company and
Indemnitee. The Company shall not settle any Claim in any manner which would
impose any penalty or limitation on Indemnitee without the Indemnitee's written
consent (which approval shall not be unreasonably withheld).
(f) Settlement of Claims. The Company shall not be
required to indemnify Indemnitee under this Agreement for any amounts paid in
settlement of any Claim effected without the Company's written consent;
provided, however, that consent by the Company to the settlement of any claim
shall not be unreasonably withheld. Notwithstanding the foregoing, however, if a
Change in Control has occurred (other than a Change in Control approved by a
majority of the members of the Board of Directors who were directors immediately
prior to such Change in Control), then the Company shall be required to
indemnify Indemnitee for amounts paid in settlement of any Claim if the
Independent Legal Counsel has approved such settlement or has not made a
determination with respect to such settlement within (30) days after the
effective date of such Change in Control.
3. Additional Indemnification Rights; Non-Exclusivity.
(a) Scope. The Company hereby agrees to indemnify
Indemnitee to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the Company's Certificate of
Incorporation or Bylaws or by statute. In the event of any change after the date
of this Agreement in any applicable law, statute or rule which expands the right
of the Company to indemnify Indemnitee, it is the intent of the parties hereto
that Indemnitee shall enjoy under this Agreement the greater benefits afforded
by such change. In the event of any change in any applicable law, statute or
rule which narrows the right of the Company to indemnify the Indemnitee, such
change, to the extent not otherwise required by such law, statute or rule to be
applied to this Agreement, shall have no effect on this Agreement or the
parties' rights and obligations hereunder.
(b) Non-Exclusivity. The indemnification provided by this
Agreement shall be in addition to any rights to which Indemnitee may be entitled
under the Company's Certificate of Incorporation or Bylaws, any agreement, vote
of stockholders or directors, the General Corporation Law of the State of
Delaware, or otherwise. The indemnification provided under this Agreement shall
continue as to Indemnitee for any Indemnifiable Event while serving in an
Indemnified Capacity even though Indemnitee may have ceased to serve in such
Indemnified Capacity.
4. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any Claim to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy or otherwise) of the amounts otherwise indemnifiable hereunder.
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5. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for a portion of
any of the Expenses in connection with the investigation, appeal or settlement
of any Claim, but not for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for such portion of the Expenses.
6. Mutual Acknowledgment. Both the Company and Indemnitee
acknowledge that, in certain instances, applicable law or public policy may
prohibit the Company from indemnifying Indemnitee under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee.
7. Liability Insurance. To the extent the Company or any
Subsidiary or Affiliate maintains liability insurance applicable to directors,
officers, managers, employees, agents, representatives or fiduciaries of the
Company or such Subsidiary or Affiliate (collectively, the "Covered Persons"),
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Covered Persons who is then serving in the same capacity or
capacities, as the case may be, as Indemnitee.
8. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee
for any Expenses resulting from acts, omissions or transactions from which
Indemnitee may not be indemnified under applicable law, or for any Expenses
resulting from Indemnitee's conduct which is finally adjudged to have been
willful misconduct or knowingly fraudulent conduct;
(b) Claims Initiated by Indemnitee. To indemnify or
advance Expenses to Indemnitee with respect to Claims initiated or brought
voluntarily by Indemnitee and not by way of defense, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
Expense Advance or insurance recovery, as the case may be, except (i) with
respect to proceedings brought to establish or enforce (a) a right to, or for,
Expense Advances and/or, as the case may be, (b) any other right of Indemnitee
under this Agreement or any other agreement or insurance policy or under the
Company's Certificate of Incorporation or Bylaws now or hereafter in effect,
(ii) in specific cases, if the Board of Directors has approved the initiation or
bringing of such suit or (iii) as otherwise required under applicable law or
statute;
(c) Lack of Good Faith. To indemnify Indemnitee for any
Expenses incurred by Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous; or
(d) Claims Under Section 16(b). To indemnify Indemnitee
for Expenses and the payment of profits arising from the purchase and sale or,
sale and purchase, by Indemnitee of
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securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or any similar successor statute.
9. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company with respect
to the matters addressed in this Agreement against Indemnitee, or Indemnitee's
estate, spouse, heirs, executors or personal or legal representatives after the
expiration of two(2) years from the date of accrual of such cause of action, and
any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period shall
govern.
10. Construction of Certain Phrases.
(a) Company. For purposes of this Agreement, references
to the "Company" shall include, in addition to the resulting entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, managers,
employees, agents, representation or fiduciaries, so that if Indemnitee is or
was a director, officer, employee, agent or fiduciary of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, manager, employee, agent or fiduciary of an Other
Entity, Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving entity as Indemnitee would
have stood with respect to such constituent entity if its separate existence had
continued. The consummation of any transaction described in this Section 10(a)
shall be subject to the requirements of Section 12, below.
(b) Miscellaneous Terms. For purposes of this Agreement,
references to "fines" shall include any excise taxes assessed on Indemnitee with
respect to an employee benefit plan; and references to "serving at the request
of the Company or any Subsidiary or Affiliate" or words of similar import shall
include any service as a director, officer, manager, employee, agent,
representative or fiduciary of the Company which imposes duties on, or involves
services by, such director, officer, manager, employee, representative, agent or
fiduciary with respect to an employee benefit plan, or its participants or its
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to in this
Agreement or under any applicable law or statute.
(c) Change in Control. For purposes of this Agreement, a
"Change in Control" shall be deemed to have occurred if (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of stock of
the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of Voting Securities (as
defined below) of the Company representing more than twenty percent (20%) of the
total voting power represented by the
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Company's then outstanding Voting Securities, (ii) during any period of two (2)
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company and any new director (other than a
director designated by a person who has entered into an agreement with the
Company to effect a transaction described in clauses (i), (iii) and (iv) of this
Section 10(c)) whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof,
or (iii) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power of the resulting or surviving
entity outstanding immediately after such merger or consolidation, or (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially all of the
Company's assets. For purposes of this Agreement, "Voting Securities" shall mean
any securities the holders of which vote generally in the election of directors.
(d) Independent Legal Counsel. For purposes of this
Agreement, "Independent Legal Counsel" shall mean an attorney or firm of
attorneys, who shall not have otherwise performed services for the Company or
Indemnitee within the then prior three years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements) selected by the Company and
approved by Indemnitee in writing, which approval shall not be unreasonably
withheld. Notwithstanding the foregoing, the term "Independent Legal Counsel"
shall not include any firm or person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee's right to indemnification under this Agreement.
(e) Reviewing Party. For purposes of this Agreement, a
"Reviewing Party" shall mean (i) any person or group of persons consisting of a
member or members of the Company's Board of Directors and/or, as the case may
be, or any other person appointed by the Board of Directors who is not a party
to the particular Claim for which Indemnitee is seeking indemnification, or (ii)
Independent Legal Counsel.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which,
together, shall constitute one and the same document.
12. Binding Effect; Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns, heirs and personal
and legal representatives. The Company may not assign its obligations under this
Agreement to any individual or entity except by operation of law to an entity
acquiring all or substantially all of the business and/or, as the case may be,
assets of the Company (a "Successor") and, in any such case, the Company shall
continue to be obligated hereunder. The Company shall require and cause any
Successor by
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written agreement in form and substance satisfactory to Indemnitee, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve in an Indemnified Capacity.
13. Attorneys' Fees. In the event that any action is instituted by
Indemnitee in a court of competent jurisdiction under this Agreement or under
any liability insurance policies maintained by the Company to enforce, or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be
paid all Expenses actually and reasonably incurred by Indemnitee with respect to
such action, regardless of whether Indemnitee is ultimately successful in such
action, and shall be entitled to an advance of such Expenses in the manner
provided in Section 2 (a), above, with respect to such action, unless, as a part
of such action, the court in which such action is brought determines that each
of the material assertions made by Indemnitee as a basis for such action was not
made in good faith or was frivolous. In the event of an action instituted by or
in the name of the Company under this Agreement to enforce or interpret any of
the terms of this Agreement, Indemnitee shall be entitled to be paid all
Expenses actually and reasonably incurred by Indemnitee in defense of such
action (including costs and expenses incurred with respect to Indemnitee's
counterclaims and cross-claims made in such action), and shall be entitled to an
advance of such Expenses in the manner provided in Section 2 (a), above, with
respect to such action, unless as a part of such action such court determines
that each of Indemnitee's material defenses to such action were made in bad
faith or were frivolous.
14. Notice. Any notices or demands given in connection herewith
shall be in writing and deemed given when (a) personally delivered, (b) sent by
facsimile transmission to a number provided in writing by the addressee and a
confirmation of the transmission is received by the sender or (c) two (2) days
after being deposited for delivery with a recognized overnight courier, such as
Fed Ex, and addressed or sent, as the case may be, to the address or facsimile
number set forth below or to such other address or facsimile number as such
party may in writing designate:
If to Indemnitee: Aloysius T. Lawn IV
If to Company: Talk.com Inc.
12020 Sunrise Valley Drive
Suite 250
Reston, VA 20190
Attn: Secretary
15. Consent to Jurisdiction. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the Commonwealth
of Pennsylvania for all purposes in connection with any action or proceeding
which arises out of or relates to this Agreement and agree that any action
instituted under this Agreement shall be commenced, prosecuted and continued
only in the courts of the Commonwealth of Pennsylvania in and for the County of
Philadelphia, which shall be the exclusive and only proper forum for
adjudicating such a claim.
16. Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or
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sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the fullest extent permitted by law. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each
portion of this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself held to be invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
17. Choice of Law. This Agreement shall be governed by and its
provisions construed and enforced in accordance with the laws of the State of
Delaware, without regard to the conflict of laws principles thereof.
18. Subrogation. In the event of payment to, or on behalf of
Indemnitee under this Agreement, the Company shall be subrogated to the extent
of such payment to all of the rights of recovery of Indemnitee, who shall, at
Company's expense, execute all documents required and shall do all acts that may
be necessary to secure such rights and to enable the Company effectively to
bring suit to enforce such rights.
19. Amendment and Termination. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless it is in
writing signed by both of the parties hereto. No waiver of any of the provisions
of this Agreement shall be deemed to, or shall constitute a waiver of, any other
provisions hereof (whether or not similar thereto), nor shall such waiver
constitute a continuing waiver. Except as specifically set forth herein, no
failure to exercise, or any delay in exercising, any right or remedy hereunder
shall constitute a waiver thereof.
20. Integration and Entire Agreement. This Agreement sets forth
the entire understanding between the parties hereto and supersedes all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.
21. No Construction as Employment Agreement. Nothing contained in
this Agreement shall be construed as giving Indemnitee any right to be retained
in the employ of the Company or any Subsidiaries.
22. Certain Words. As used in this Agreement, the words "herein,"
"hereunder," "hereof" and similar words shall be deemed to refer to this
Agreement in its entirety, and not to any particular provision of this Agreement
unless the context clearly requires otherwise.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TALK.COM INC.
By: /s/ Edward Meyercord
-------------------------------------
Title: CFC-COO
----------------------------------
AGREED TO AND ACCEPTED
INDEMNITEE:
/s/ Aloysius T. Lawn IV
----------------------------------
Aloysius T. Lawn IV
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