EX-10.2 3 exhibit10_2.htm EXHIBIT 10.2

 

EXHIBIT

10.2

 

EMPLOYMENT

AGREEMENT

 

 

THIS

EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the 1st day of

January, 2004, between Talk America Holdings, Inc., a Delaware corporation

("Company"), and Edward B. Meyercord, III ("Employee") ,

and amends

and replaces that certain Employment Agreement dated March 28, 2001 among

Talk.com Inc. and Edward B. Meyercord, III .

 

 

Preliminary

Statement

 

WHEREAS,

Employee has been an employee of Company and Company desires to continue to

employ Employee and Employee desires to continue to be employed by Company;

and

 

WHEREAS,

Company and Employee desire to enter into this Agreement that sets forth the

terms and conditions of said continued employment.

 

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.    Employment

.

Company agrees to employ Employee, and Employee accepts such employment and

agrees to serve Company, on the terms and conditions set forth herein. Except as

otherwise specifically provided herein, Employee’s employment shall be subject

to the employment policies and practices of Company in effect from time to time

during the term of Employee’s employment hereunder (including without limitation

its practices as to reporting and withholding).

 

2.    Term

of Agreement .

The term of Employee’s employment hereunder shall continue in effect until

December 31, 2006, except as hereinafter provided (the "Term").

 

      3.      Position and Duties .

Except

as may otherwise be agreed upon between Company and Employee, Employee shall

perform such duties and have such responsibilities as Chief Executive Officer

and President and Chief Executive Officer and President of Talk America Inc., a

Pennsylvania corporation which is a wholly-owned subsidiary of Company, and such

other duties and responsibilities consistent with the foregoing duties and

responsibilities as may be reasonably assigned or delegated to him from time to

time by the Company’s Board of Directors (the "Board"), including, without

limitation, service as an employee, officer or director of affiliates (as that

term is defined in Rule 405 of the Securities Act of 1933, as amended (the

"Act")) of Company (the affiliates of Company, "Affiliates") without additional

compensation. References in this Agreement to Employee’s employment with Company

shall be deemed to refer to employment with Company or an Affiliate. Employee

shall perform his duties and responsibilities to the best of his

 

 

 

 


 

 

abilities in a diligent manner. Employee shall devote substantially all of his working time and efforts to the business and affairs of Company; provided, however, that nothing in this Agreement shall preclude the Employee from (i) engaging in charitable activities and community affairs; (ii) managing his personal investments and affairs, subject to the limitations of Section 10 hereof; and (iii) acting as a non-employee director of up to five (5) corporations or other entities, provided that such entities are not Competitors (as defined in Section 11) hereof.

 

4.    Compensation

and Related Matters .

 

 

     4.1    Base

Salary .

During the Term, Company shall pay to Employee an annualized base salary of not

less than $500,000, subject to review from time to time by the Board ("Base

Salary"). Base Salary shall be paid in accordance with Company’s usual and

customary payroll practices.

 

4.2    Benefit

Plans and Arrangements .

Employee shall be entitled to participate in and to receive benefits under

Company’s employee benefit plans and arrangements (including, but not limited

to, bonus plans) as are made available to the Company’s senior executive

officers during the Term, which employee benefit plans may be altered from time

to time at the discretion of the Board (collectively with the benefits referred

to in Section 4.3, the "Benefits"). Without limitation of the generality of the

foregoing, the Benefits shall include a minimum of three (3) weeks of paid

vacation each calendar year, which, if not used in its entirety in any year, may

be carried over to the next succeeding calendar year, provided that Employee

shall not be entitled to more than five (5) weeks of paid vacation in any

calendar year. Employee acknowledges and agrees that bonuses, annual or

otherwise, are performance-based and discretionary with the Board or a Committee

thereof.

 

4.3    Perquisites

.

During the Term of his employment hereunder, Employee shall be entitled to

receive fringe benefits as are made available to the Company’s senior executive

officers ;

provided,

that Employee shall, in any event, be provided with an automobile allowance as

Company shall determine (but consistent with prior practices) .

.

 

 

4.4    Expenses

.

Company shall promptly reimburse Employee for all out-of-pocket expenses related

to Company’s business that are actually paid or incurred by him in the

performance of his services under this Agreement and that are incurred, reported

and documented in accordance with Company’s policies.

 

5.    Termination

.

The Term may be terminated under the following circumstances:

 

5.1    Death

.

The Term shall terminate upon the Employee’s death.

 

 

 

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5.2    Disability

.

If Employee becomes physically or mentally disabled during the term hereof so

that he is unable to perform services required of him pursuant to this Agreement

for an aggregate of six (6) months in any twelve (12) months period (a

"Disability"), Company, at its option, may terminate Employee's employment

hereunder.

 

5.3    Cause

. Upon

written notice, Company may terminate the Term for Cause. For purposes of this

Agreement, Company shall have "Cause" to terminate Employee’s employment

hereunder upon (i) material breach by Employee of any material provision of this

Agreement if Employee fails to cure such

breach in the 30 day period following written notice specifying in reasonable

detail the nature of the breach ;

(ii) willful misconduct by Employee as an employee of Company in connection with

misappropriating any funds or property of Company or attempting to willfully

obtain any personal profit from any transaction in which Employee has an

interest that is adverse to the interests of Company without prior written

disclosure thereof to, and consent from, the Board; or (iii) Employee’s gross

neglect in the performance of the duties required to be performed by Employee

under this Agreement if

Employee fails to eliminate such neglect in the 30 day period following written

notice specifying in reasonable detail the nature of the gross neglect.

 

 

5.4    By

Employee .

 

 

(i)    Employee

may terminate the Term upon forty-five (45) days’ prior written notice to

Company, provided that, upon the giving of such notice by Employee, Company may

establish an earlier date for the termination of the Term and such termination

under this Section 5.4.

 

(ii)    Employee

may terminate employment hereunder for Good Reason immediately and with notice

to Company. "Good Reason" for termination by Employee shall include, but is not

limited to, the following:

 

(a)    Material

breach of any provision of this Agreement by Company, which breach shall not

have been cured by Company within fifteen (15) days of receipt of written notice

of said material breach;

 

(b)    Failure

by Company to maintain Employee in a position commensurate with that referred to

in Section 3 of this Agreement;

 

(c)    The

assignment to Employee of any duties inconsistent with the Employee’s position,

authority, duties or responsibilities as contemplated by Section 3 of this

Agreement, or any other action by Company that results in a diminution of such

position, authority, duties or responsibilities; or

 

(d)    The

relocation of Company’s offices at which Employee is principally employed to a

location more than 50 miles

 

 

 

 

 

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away

from New Hope, Pennsylvania, or Company’s requiring Employee to be based

anywhere other than Company’s offices in New Hope, Pennsylvania except for

required travel on Company’s business to the extent substantially consistent

with Employee’s travel obligations during the year preceding the date of this

Agreement (including, without limitation, periodic travel to and work at

Company’s executive offices in Virginia).

 

5.5    Without

Cause .

Company may otherwise terminate the Term at any time upon written notice to

Employee.

 

6.    Compensation

In the Event of Termination .

Except as otherwise provided in Section 7.3, in the event that Employee’s

employment pursuant to this Agreement terminates prior to the end of the Term of

this Agreement, Company shall make payments to Employee as set forth

below:

 

6.1    By

Employee for Good Reason; By Company Without Cause .

In the event that Employee’s employment hereunder is terminated: (i) by Employee

for Good Reason or (ii) by Company without Cause, then Company shall (a)

pay

to Employee all amounts due to Employee pursuant to any bonus that was due to

Employee as of the date of such termination, pursuant to the terms of such bonus

(a "Due Bonus"), (b) continue

to pay and provide Employee t he

Base Salary and Benefits to which Employee would be entitled hereunder in the

manner provided for herein for the period of time ending on the earlier of the

date when the Term would otherwise have expired in accordance with Section 2

hereof and the second anniversary of the date of such termination, (c)

reimburse Employee for expenses that may have been incurred, but which have not

been paid as of the date of termination, subject to the requirements of Section

4.4 hereof and (d) one hundred percent (100%) of the outstanding stock options

granted to the Employee that are unvested shall immediately vest and become

exercisable.

 

6.2    By

Company for Cause; By Employee Without Cause .

In the event that Company shall terminate Employee’s employment hereunder for

Cause pursuant to Section 5.3 hereof or Employee shall terminate his employment

hereunder without Good Reason, all compensation and Benefits, as specified in

Section 4 of this Agreement, heretofore payable or provided to the Employee

shall cease to be payable or provided, except for any Due Bonus and any Benefits

that may have been earned and are due and payable but that have not been paid as

of the date of termination and reimbursements for expenses that may have been

incurred, reported and documented but that have not been paid as of the date of

termination, subject to the requirements of Section 4.4 hereof.

 

6.3    Death

.

In the event of Employee’s death, Company shall not be obligated to pay Employee

or his estate or beneficiaries any compensation except for (a) any Due Bonus and

any Benefits that may have been earned and are due and payable but that have not

been paid as of the date of death and reimbursements for expenses that may have

been incurred, reported and documented but that have not been paid as of the

date of death,

 

 

 

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(b)

reimbursement of expenses that may have been incurred, but that have not been

paid as of the date of death, subject to the requirements of Section 4.4 hereof,

and (c) all outstanding stock options granted to Employee that are unvested

shall immediately vest and become exercisable and Employee’s estate or

beneficiaries, as the case may be, shall have the right to exercise any of such

stock options during the period commencing on the date of death and ending on

the second anniversary of the date of such termination or for the remainder of

the period set forth in the option agreement applicable to the option in

question (the "Exercise Period"), if less.

 

            6.4    Disability .

In the event of Employee’s Disability, Company shall not be obligated to pay

Employee or his estate or beneficiaries any additional compensation except for:

(a) any Due Bonus and any Benefits for the period of time ending on the earlier

of the date when the Term would otherwise expire in accordance with Section 2

hereof and the second anniversary f the date of such Disability; (b)

reimbursement for expenses that may have been incurred, reported and documented

but that have not been paid as of the date of Disability subject to the

requirements of Section 4.4 hereof, and (c) Company will pay Employee,

commencing on the day after the end of the Term (i) 100,000 dollars ($100,000)

per year until the Employee reaches the age of 65 or, at Company's option, (ii)

a lump sum thirty (30) days after the date of termination of employment as a

result of Disability equal to the present value of the amount to be paid

pursuant to Section 6.4(c)(i) above. Upon

termination due to Disability, fifty percent (50%) of the outstanding stock

options granted to Employee that are unvested shall immediately vest and become

exercisable and Employee or his estate or beneficiaries, as the case may be,

shall have the right to exercise any of such stock options during the period

commencing on the date of Disability and ending on the second anniversary of the

date of the Disability or for the remainder of the Exercise Period, if

less.

 

     6.5    No Mitigation .

In the event of any termination of employment under Section 5 or Section 7.3,

Employee shall be under no obligation to seek other employment; provided,

however, to the extent that Employee does obtain other employment subsequent to

the termination of Employee’s employment hereunder, Company’s obligations to

continue to pay or provide Benefits under this Agreement for the period from and

after the date of commencement of such other employment shall terminate.

 

 

7.    Change

in Control .

 

 

7.1  Change

in Control .

For

purposes of this Agreement, "Change in Control" shall be deemed to have occurred

if:

 

7.1.1  any

Person (as defined in Section 3(a)(9) under the Securities Exchange Act of 1934,

as amended (the "Exchange Act")), other than Company or any Significant

Subsidiary (as defined below), becomes the Beneficial Owner (as defined in Rule

13d-3 under the Exchange Act; provided,

 

 

 

 

 

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that

a Person shall be deemed to be the Beneficial Owner of all shares that any such

Person has the right to acquire pursuant to any agreement or arrangement or upon

exercise of conversion rights, warrants, options or otherwise, without regard to

the 60-day period referred to in Rule 13d-3 under the Exchange Act), directly or

indirectly, of securities of Company or any Significant Subsidiary (as defined

below) representing 50% or more of the combined voting power of the Company’s,

or such Significant Subsidiary’s, as the case may be, then outstanding

securities;

 

7.1.2  during

any period of two years, individuals who at the beginning of such period

constitute the Board and any new director (other than a director designated by a

person who has entered into an agreement with Company to effect a transaction

described in 7.1.3, 7.1.4 or 7.1.5) whose election by the Board or nomination

for election by 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 two-year period or whose election or nomination for election was

previously so approved, but excluding for this purpose any such new director

whose initial assumption of office occurs as a result of either an actual or

threatened election contest or other actual or threatened solicitation of

proxies or consents by or on behalf of an individual, corporation, partnership,

group, association or other entity other than the Board, cease for any reason to

constitute at least a majority of the Board of either Company or a Significant

Subsidiary;

 

7.1.3  the

consummation of a merger or consolidation of Company or any subsidiary of

Company owning directly or indirectly all or substantially all of the

consolidated assets of Company (a "Significant Subsidiary") with any other

entity, other than a merger or consolidation that would result in the holder(s)

of voting securities of Company or a Significant Subsidiary outstanding

immediately prior thereto continuing to hold more than fifty percent (50%) of

the combined voting power of the surviving or resulting entity outstanding

immediately after such merger or consolidation;

 

7.1.4  the

stockholders of Company approve a plan or agreement for the sale or disposition

of fifty percent (50%) or more of the consolidated assets of Company in which

case the Board shall determine the effective date of the Change of Control

resulting therefrom;

 

7.1.5  any

other event occurs that the Board determines, in its discretion, would

materially alter the structure of Company or its ownership; or

 

7.2    Options

Vesting .

In

the event of a Change in Control of Company, all outstanding options granted to

you by Company shall vest immediately and become exercisable as to all shares

then subject thereto that are not then vested and exercisable.

 

7.3    Termination

after Change in Control .

 

 

 

 

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7.3.1    If

a Change of Control shall occur during the Term of this Agreement, the term of

Employee’s employment hereunder shall continue in effect until the later of the

first anniversary of the date of the Change in Control and the date that the

Term would otherwise have terminated without regard to the extension in this

sentence, except for earlier termination as provided in Section 5 of this

Agreement. The rights and obligations of Employee and Company under this

Agreement upon or after any termination of the Term shall survive any such

termination.

 

7.3.2    Notwithstanding

the provisions of Section 6 hereof, if a Change in Control has occurred and

Employee’s employment hereunder is terminated within one year of such Change in

Control: (i) by Employee for Good Reason or (ii) by Company without Cause, then

Company shall (a) pay

to Employee the Base Salary and Benefits through the date of termination plus

all amounts due to Employee pursuant to any Due Bonus; (b) pay to Employee, as

severance pay, a lump sum amount equal to the sum of (x) twenty-four months’

Base Salary plus (y) an amount equal to the average annual incentive bonus

earned by Employee from Company during the last four (4) completed fiscal years

of Company preceding the date of Change in Control, or if Employee was not an

officer during any or all of such prior four (4) fiscal years, the average of

the incentives received during the fiscal years when Employee was such an

officer; (c) for a period of two years after the date of termination, arrange to

provide Employee with life, disability, sickness and accident, health, vision

and dental insurance benefits substantially similar to those that Employee was

entitled prior to the Change in Control, as well as with the other fringe

benefits and perquisites to which Employee was entitled pursuant to Section

4.3; and

(d)

reimburse Employee for expenses that may have been incurred, but which have not

been paid as of the date of termination, subject to the requirements of Section

4.4 hereof.

 

8.    Unauthorized

Disclosure .

Employee shall not, without the prior written consent of Company, disclose or

use in any way, either during the Employee’s employment with Company or

thereafter, except as required in the course of such employment, any

confidential business or technical information or trade secret acquired in the

course of such employment (including, without limitation of the generality of

the foregoing, any and all information referred to in Section 10 hereof),

whether or not conceived of or prepared by him, that is related to the actual or

anticipated business, services, research and development of Company or any of

its Affiliates or to existing or future products or services of Company or any

of its Affiliates; provided, that the foregoing shall not apply to (i)

information that is not unique to Company or that is generally known to the

industry or the public other than as a result of Employee’s breach of this

covenant, (ii) information known to the Employee prior to the date he first

became an employee of Company or any of its Affiliates (except insofar as it is

part of the information that is the exclusive property of Company as provided in

Section 10), or (iii) information that Employee is required to disclose to or by

any governmental or judicial authority; provided, however, if Employee should be

required in the course of judicial or administrative proceedings to disclose any

information, Employee shall give Company prompt written notice thereof so that

Company may seek an appropriate protective order and/or waive in writing

compliance with the confidentiality provisions of this Agreement. If, in the

absence of a protective order or the receipt of a

 

 

 

 

 

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waiver

by Company, Employee is nonetheless, in the written opinion of its counsel,

compelled to disclose information to a court or tribunal or otherwise stand

liable for contempt or suffer other serious censure or penalty, Employee may

disclose such information to such court or tribunal without liability to any

other party hereto.

 

9.    Tangible

Items .

All files, records, documents, manuals, books, forms, reports, memoranda,

studies, data, calculations, recordings, correspondence, in whatever form they

may exist, and all copies, abstracts and summaries of the foregoing and all

physical items related to the business of Company and its Affiliates, other than

merely personal items, whether of a public nature or not, and whether prepared

by Employee or not, and which are received by Employee from, or on behalf of

Company or an Affiliate in the course of his employment hereunder are and shall

remain the exclusive property of Company and its Affiliates and shall not be

removed from their premises, except as required in the course of employment by

Company, without the prior written consent of the Board, and the same shall be

promptly returned by Employee on the termination of Employee’s employment with

Company or at any time prior thereto upon the request of the Board.

 

 

10.    Inventions

and Patents .

Employee agrees that all inventions, innovations, ideas, concepts, improvements,

developments, methods, designs, analyses, drawings, reports, and all similar or

related information that relates to the actual or anticipated business,

services, research and development of Company or any of its Affiliates or

existing or future products or services of Company or any of its Affiliates,

tangible or intangible, and that are conceived, developed or made by or at the

direction of Employee while employed by Company, and all rights to the results

and proceeds of any thereof and all now known and hereafter existing rights of

every kind and nature throughout the universe, in perpetuity and in all

languages, pertaining to such results and proceeds and all elements thereof for

all now known and hereafter existing uses, media and form will be owned

exclusively by Company; and the foregoing is inclusive of a full irrevocable and

perpetual assignment to Company. Employee

acknowledges that there are, and may be, new uses, media, means and forms of

exploitation throughout the universe employing current and/or future technology

yet to be developed, and the parties specifically intend the foregoing full,

irrevocable and perpetual grant of rights to Company to include all such now

known and unknown uses, media and form of exploitation, throughout the universe.

Employee agrees to execute at any time upon the Company’s request such further

documents or do such other acts (whether

before, during or after the Term) as

may be required to evidence and/or confirm the Company’s ownership of any or all

of the foregoing. The termination, completion or breach of this Agreement for

any reason and by either party shall not affect the Company’s exclusive

ownership of any or all of the foregoing.

 

11.    Certain

Restrictive Covenants .

During the Term, and for a period ending twelve (12) months after the earlier of

the Employee’s termination of employment hereunder and the end of the Term,

Employee agrees that he will not act either directly or indirectly as a partner,

officer, director, substantial stockholder or employee, or render advisory or

other services for, or in connection with, or become interested in, or make any

substantial financial

 

 

 

 

 

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investment

in any firm, corporation, business entity or business enterprise competitive

with the business of Company, except with the express written consent of the

Board ("Competitors"). Employee further agrees that in the event of the

termination of his employment under Section 5, for a period of one year

thereafter, he will not employ or offer to employ, call on, solicit, actively

interfere with Company’s or any Affiliate’s relationship with, or attempt to

divert or entice away, any employee of Company or any Affiliate.

 

12.    Employee

Representations .

Employee hereby represents and warrants to Company that (i) the execution,

delivery and performance of this Agreement by Employee does not and will not

conflict with, breach, violate or cause a default under any employment,

non-competition or confidentiality contract, agreement, instrument, order,

judgment or decree to which Employee is a party or by which he is bound, (ii)

except as disclosed to Company in writing prior to the execution of this

Agreement, Employee is not a party to or bound by any employment agreement,

non-compete agreement or confidentiality agreement with any other person or

entity, and (iii) upon the execution and delivery of this Agreement by Company,

this Agreement shall be the valid and binding obligation of Employee,

enforceable in accordance with its terms, subject to applicable bankruptcy,

insolvency and similar laws affecting the rights of creditor generally.

 

 

13.    Company

Representations . Company

represents and warrants (i) that it is duly authorized and empowered to enter

into this Agreement, (ii) that the execution, delivery and performance of this

Agreement by Company does not and will not conflict with, breach, violate or

cause a default under any contract, agreement, instrument, order, judgment or

decree to which Company is a party or by which it is bound violate any agreement

between it and any other person, firm or organization and (iii) upon the

execution and delivery of this Agreement by the Employee, this Agreement shall

be the valid and binding obligation of Company, enforceable in accordance in

accordance with its terms, subject to applicable bankruptcy, insolvency and

similar laws affecting the rights of creditor generally.

 

14.    Remedies

.

Employee acknowledges that the restrictions and agreements contained in this

Agreement are reasonable and necessary to protect the legitimate interests of

Company, and that any violation of this Agreement will cause substantial and

irreparable injury to Company that would not be quantifiable and for which no

adequate remedy would exist at law and agrees that injunctive relief, in

addition to all other remedies, shall be available therefor.

 

15.    Effect

of Agreement on Other Benefits . Except

as specifically provided in this Agreement, the existence of this Agreement

shall not be interpreted to preclude, prohibit or restrict Employee’s

participation in any other employee benefit or other plans or programs provided

to officers, directors or employees of Company.

 

16.    Rights

of Executive’s Estate .

If Employee dies prior to the payment of all amounts due and owing to him under

the terms of this Agreement, such amounts shall be paid to such beneficiary or

beneficiaries as Employee may have last designated in writing filed with the

Secretary of

 

 

 

 

 

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Company

or, if Employee has made no beneficiary designation, to Employee’s estate. Such

designated beneficiary or the executor of his estate, as the case may be, may

exercise all of Employee’s rights hereunder. If any beneficiary designated by

Employee shall predecease Employee, the designation of such beneficiary shall be

deemed revoked, and any amounts that would have been payable to such beneficiary

shall be paid to Employee’s estate. If any designated beneficiary survives

Employee, but dies before payment of all amounts due hereunder, such payments

shall, unless Employee has designated otherwise, be made to such beneficiary’s

estate. In the event of Employee’s death or judicial determination of his

incompetence, reference in this Agreement to Employee shall be deemed where

appropriate, to refer to his beneficiary, estate or other legal

representative.

 

17.    Severability

.

It is the intent and understanding of the parties hereto that if, in any action

before any court or agency legally empowered to enforce this Agreement, any

term, restriction, covenant, or promise is found to be unreasonable and for that

reason unenforceable, then such term, restriction, covenant, or promise shall

not thereby be terminated but that it shall be deemed modified to the extent

necessary to make it enforceable by such Court or agency and, if it cannot be so

modified, that it shall be deemed amended to delete therefrom such provision or

portion adjudicated to be invalid or unenforceable, such modification or

amendment in any event to apply only with respect to the operation of this

Agreement in the particular jurisdiction in which such adjudication is

made.

 

18.    Notice

.

For the purposes of this Agreement, notices, demands and all other

communications provided for in the Agreement shall be in writing and shall be

deemed to have been duly given when received if delivered in person or by

overnight courier or if mailed by United States registered mail, return receipt

requested, postage prepaid, to the following addresses:

 

If

to Employee:

 

Edward

B. Meyercord

415

Ridgeview Road

Princeton,

NJ 08540

 

If

to Company:

 

Talk

America Holdings, Inc.

6805

Route 202

New

Hope, Pennsylvania 18938

Attn:

EVP - General Counsel

 

Either

party may change its address for notices by written notice to the other party in

accordance with this Section.

 

 

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19.    Miscellaneous

.

No provision of this Agreement may be modified, waived or discharged unless such

waiver, modification or discharge is agreed to in writing signed by Employee and

Company. No waiver by either party hereto at any time of any breach by the other

party hereto of, or compliance with, any condition or provision of this

Agreement to be performed by such other party shall be deemed a waiver of

similar or dissimilar provisions or conditions at the same or at any prior or

subsequent time. The validity, interpretation, construction and performance of

this Agreement shall be governed by the laws of Pennsylvania relating to

contracts made and to be performed entirely therein.

 

20.    Headings

.

The headings in this Agreement are inserted for convenience only and shall have

no significance in the interpretation of this Agreement.

 

21.    Successors

.

Company may not assign any of its rights or obligations under this Agreement

hereunder. Employee may assign his rights, but not his obligations hereunder and

all of Employee's rights hereunder shall inure to the benefit of his estate,

personal representatives, designees or other legal representatives. All of the

rights of Company hereunder shall inure to the benefit of, and be enforceable by

the successors of Company. Any person, firm or corporation succeeding to the

business of Company by merger, purchase, consolidation or otherwise shall be

deemed to have assumed the obligations of Company hereunder; provided, however,

that Company shall, notwithstanding such assumption by a successor, remain

primarily liable and responsible for the fulfillment of its obligations under

this Agreement.

 

22.    Counterparts

.

This Agreement may be executed in one or more counterparts, each of which shall

be deemed to be an original but all of which together will constitute one and

the same instrument.

 

23.    Insurance

.

Company shall maintain in effect during the Term policies of directors and

officers’ liability, and similar insurance covering Employee in amounts and with

coverage at least as favorable with respect to directors and executive officers

of Company as in effect on the date hereof.

 

24.    Waiver

.

No provision of his Agreement may be modified, waived or discharges unless such

waiver, modification or discharge is agreed to in a writing executed by Employee

and Company. No waiver by any party hereto at any time of any breach by another

party hereto of, or compliance with, any condition or provision of this

Agreement to be performed by such other party shall be deemed a waiver of

similar or dissimilar provisions or conditions at the same or at any prior or

subsequent time.

 

25.    Governing

Law .

The validity, interpretation, construction and performance of this Agreement

shall be governed by the laws of Pennsylvania relating to contracts made and to

be performed entirely therein.

 

 

11

 


 

 

26.    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.

 

IN

WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of

the day and year first written above.

 

TALK

AMERICA HOLDINGS, INC.

 

 

By:

/s/ Aloysius T. Lawn IV                   

Name:

Aloysius T. Lawn IV

Title:

EVP - General Counsel

 

                        /s/ Edward B. Meyercord,

III

                        Edward B. Meyercord, III

Employee