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Exhibit
10.13
Indemnification
Agreement
This Amended and Restated
Indemnification Agreement (this “ Agreement ”)
is entered into as of the 1st day of August, 2005 between IDT
Corporation, a Delaware corporation (“ IDT ”);
and IDT Spectrum, Inc. ( “ IDT Spectrum ”
) .
R E C I T A L
S
WHEREAS, on in December, 2004
and January, 2005 (the “Transfer Date”) certain
subsidiaries of IDT transferred certain assets (the
“Transferred Assets”) and liabilities to IDT Spectrum
and a subsidiary of IDT Spectrum;
WHEREAS, it is in IDT’s
best interest to relieve IDT Spectrum from certain potential
liabilities related to the such Transferred Assets and liabilities;
and
WHEREAS, IDT has agreed to
indemnify IDT Spectrum with respect to certain liabilities,
including liabilities which have not been assigned to, or assumed
by, IDT Spectrum;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, IDT and IDT Spectrum hereby agree as
follows:
1. Indemnification
.
From and after the date
hereof, IDT shall indemnify and hold harmless IDT Spectrum and its
officers, directors, employees, affiliates, stockholders and
controlling persons (the “ Indemnified Parties
”) for, and will pay to the Indemnified Parties the amount
of, any losses, claims, damages (including incidental and
consequential damages), expenses (including attorneys’ fees
and all other costs, expenses and obligations incurred in
connection with investigating, defending a witness in or
participating in (including on appeal), or preparing to defend, be
a witness in or participate in, any action, suit, proceeding,
alternative dispute resolution mechanism, hearing, inquiry or
investigation), liabilities, judgments, fines, penalties and
amounts paid in settlement of any third-party claim, and any
federal, state, local or foreign taxes imposed on such Indemnified
Parties as a result of the actual or deemed receipt of any payments
under this Agreement, whether or not involving a third-party claim
(any and all of the foregoing being referred to hereafter as
“ Damages ”), including all interest,
assessments and other charges paid or payable in connection with or
in respect of such Damages, to the fullest extent permitted by law,
in each case arising from the matters set forth in Schedule
A hereto, whether or not such Damages were incurred prior to or
after the date of this Agreement. Such payment of Damages shall be
made by IDT as soon as practicable but in any event no later than
ten (10) days after written demand by an Indemnified Party therefor
is presented to IDT.
To the extent that IDT sells
Winstar Holdings, LLC or its assets, it will use commercially
reasonable efforts to ensure that any indemnification from the
buyer thereof related to activities of the transferred entity or
assets following the closing of such transaction inure to the
benefit of the Indemnified Parties as well.
2. Damages;
Indemnification Procedure .
(a) Advancement of
Expenses . If any of the Indemnified Parties 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, whether civil,
criminal, administrative, investigative or other, in each case for
which it is entitled to indemnification pursuant to Section 1, or
any hearing, inquiry or investigation that IDT Spectrum in good
faith believes might lead to the institution of any such action,
suit, proceeding or alternative dispute resolution mechanism, IDT
shall advance all expenses incurred by an Indemnified Party in
connection therewith. The advances to be made hereunder shall be
paid by IDT to such Indemnified Party as soon as practicable but in
any event no later than ten (10) days after written demand by an
Indemnified Party therefor to IDT.
(b) Notice/Cooperation by
IDT Spectrum . Each Indemnified Party shall give IDT notice in
writing as soon as practicable of any third-party claim made
against such Indemnified Party for which indemnification will be
sought under this Agreement. In addition, each Indemnified Party
shall give IDT such information and cooperation as it may
reasonably require and as shall be within such Indemnified
Party’s power.
3. Termination . IDT
and IDT Spectrum acknowledge that this Agreement is being entered
into in anticipation of the completion of a public offering of
common stock of IDT Spectrum and IDT’s desire to facilitate
that process and ensure the success of that transaction.
Accordingly, this Agreement and the parties’ obligations
hereunder shall terminate if such offering shall not have been
consummated on or prior to January 31, 2006.
4. Counterparts . This
Agreement may be executed in one or more counterparts, each of
which shall constitute an original.
5. Binding Effect;
Successors and Assigns . This Agreement shall be binding upon
and inure to the benefit of and be enforceable by th
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