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 Agr
