EXHIBIT 10.3
AMENDED AND RESTATED
CONSULTING AGREEMENT
THIS AMENDED AND RESTATED CONSULTING AGREEMENT is made, entered into
and effective as of this 12th day of February, 2002, by and between TALK AMERICA
HOLDINGS, INC. (F/K/A XXXX.XXX, INC.), a Delaware corporation (as assignee of
Access One Communications Corp., the "Company"), and MCG CAPITAL CORPORATION
(F/K/A MCG CREDIT CORPORATION), a Delaware corporation (the "Consultant").
RECITALS
A. The Company and the Consultant are parties to that certain
Consulting Agreement dated as of July, 2000 and effective as of August 2000 (the
"Original Consulting Agreement"; as amended and restated in its entirety hereby,
the "Agreement").
B. The Company desires to retain the Consultant to provide certain
advisory and consulting services to the Company, and the Consultant desires to
provide such services, all on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto, intending to
be legally bound hereby, agree as follows:
1. RETAINER. The Company hereby retains the Consultant, and the
Consultant hereby accepts such retention by the Company, upon the terms and
subject to the conditions set forth herein.
2. TERM. Subject to earlier termination pursuant to Section 5 hereof,
the term of this Agreement (the "Term") shall commence as of the effective date
of the Original Consulting Agreement and shall continue until terminated by
either party upon prior written notice of at least 10 business days (the "Notice
Period") to the other party; provided, however, that during the Notice Period,
the Consultant shall use commercially reasonable efforts to complete, or bring
to a reasonable point of transition, any project for which it was performing
Consulting Services (defined below) at the time the termination notice was
given.
3. SERVICES. During the Term, the Consultant shall render to the
Company, from time to time and on a non-exclusive basis, such consulting and
strategic advisory services as the Consultant and the Company may hereafter
mutually agree, including with respect to the bundling of elements of local and
long-distance telecommunications services as well as financial modeling,
benchmarking, budgeting and projection services (the "Consulting Services"). The
scope, terms, timing and deliverables associated with the provision of any such
Consulting Services shall also be subject to the mutual agreement of the Company
and the Consultant from time to time. Subject to compliance by the Consultant
with the confidentiality restrictions under Section 6, however, the Company
hereby acknowledges and consents to the Consultant providing similar services
to, investing in and otherwise engaging in transactions with (including the
provision of financing to) other enterprises that operate in the same or related
industries and/or markets.
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4. COMPENSATION. As compensation for the execution, delivery and
performance of Original Consulting Agreement, the Consultant received a Warrant
to purchase 300,000 shares of the Common Stock (par value $0.01 per share) of
the Company pursuant to a Warrant containing customary and mutually acceptable
terms, conditions, rights and protections. AS ADDITIONAL COMPENSATION for
various strategic advice that Consultant has recently provided to the Company,
and for the execution, delivery and performance of this Agreement, the Company
hereby agrees to issue and grant to the Consultant on the effective date hereof
(and to deliver by 5:00 p.m. Easter Time on Tuesday, February 19, 2001
certificates evidencing) 200,000 shares of the Common Stock (par value $0.01 per
share) of the Company, which shares of stock (a) upon issuance and delivery
hereunder shall be validly issued, fully paid and non-assessable and (b) as of
the effective date hereof shall be fully earned and non-refundable. The Company
hereby agrees (at its expense) to register all of Consultant's stock and
warrants to purchase stock upon the earlier of the following: (i) November 14,
2002 and (ii) the date on which the Company next registers any shares of its
equity securities or any warrants, options (other than employee options on Form
S-8) or convertible instruments to acquire such equity securities.
5. TERMINATION. Notwithstanding anything herein to the contrary, the
Company may immediately terminate this Agreement by written notice to the
Consultant upon any of the following events: (i) the Consultant's material
breach of this Agreement, or (ii) the Consultant's breach of any of the
provisions of Article 6 hereof, or (iii) the Consultant's bankruptcy, whether
voluntary or involuntary.
6. CONFIDENTIALITY. The Consultant shall employ reasonable procedures
to treat as confidential all written, non-public information delivered to the
Consultant pursuant to or in connection with the services provided under this
Agreement concerning the performance, operations, assets, structure and business
plans of the Company. While other or different confidentiality procedures may be
employed by the Consultant, the actual procedures employed by the Consultant for
this purpose will be conclusively deemed to be reasonable if they are at least
as protective of such information as the procedures generally employed by the
Consultant to safeguard the confidentiality of the Consultant's own confidential
information. Notwithstanding the foregoing, the Consultant may disclose any
information concerning the Company in the Consultant's possession from time to
time (a) to any lender to or investor in the Consultant (including prospective
lenders and investors), but subject to a reasonable confidentiality agreement
regarding any non-public confidential information thereby disclosed, and (b) in
response to credit inquiries consistent with general banking practices, and (c)
to any federal or state regulator of the Consultant, and (d) to the Consultant's
affiliates, employees, legal counsel, appraisers, accountants, rating agencies
and agents, and (e) to any person pursuant to compulsory judicial process, and
(f) to any judicial or arbitration forum in connection with enforcing this
Agreement or the Warrant or defending any action based upon this Agreement or
the Warrant or the relationship between the Consultant and the Company, and (g)
to any other person with respect to the public or non-confidential portions of
any such information. Moreover, the Consultant (without any compensation,
remuneration or notice to the Company) may also include operational and
performance and structural information and data relating to the Company in
compilations, reports and data bases assembled by the Consultant (or its
affiliates) and used to conduct, support, assist in and validate portfolio,
industry and credit research and analysis for itself and other persons;
provided, however, that the Consultant may not thereby disclose to other
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persons any information relating to the Company in a manner that is attributable
to the Company unless (1) such disclosure is permitted under the standards
outlined above in this Section or (2) the Company otherwise separately consents
thereto.
7. MISCELLANEOUS.
7.1 Independent Relationship; Taxes. The Consultant is not
authorized by this Agreement to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the Company
or to bind the Company in any manner or to anything whatsoever. The Consultant
shall perform all services hereunder as an "independent contractor" and not as
an employee, agent, distributor, representative, affiliate, partner or joint
venturer of the Company. Notwithstanding anything to the contrary herein, this
Agreement in no manner shall be construed to create an employment or
employee/employer relationship between the Company and the Consultant. The
Consultant is not authorized to assume or create any obligation or
responsibility, express or implied, on behalf of, or in the name of, the Company
or to bind the Company in any manner. The Company shall not be responsible for
the withholding or payment of federal, state or other taxes, including, but not
limited to, income, workers' compensation, unemployment and social security
taxes, payable by reason of services rendered by the Consultant to the Company.
7.2 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the provision of the Consulting
Services (other than with respect to the compensation therefor), and this
Agreement supersedes and terminates any and all prior agreements or contracts,
oral or written, entered into between the parties relating to the provision of
the Consulting Services.
7.3 Amendments. This Agreement shall not be amended or
otherwise modified except by a written instrument duly executed by the parties
hereto.
7.4 Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE
COMMONWEALTH OF VIRGINIA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE COMMONWEALTH OF VIRGINIA OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE COMMONWEALTH OF VIRGINIA. Each of the parties submits to the
jurisdiction of any state or federal court sitting in the Commonwealth of
Virginia in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding may
be heard and determined in any such court. Each party also agrees not to bring
any action or proceeding arising out of or relating to this Agreement in any
other court. Each of the parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond, surety
or other security that might be required of any other Party with respect
thereto.
7.5 Assignment. Neither party may assign its respective rights
hereunder (other than to an affiliate of such party) without the prior written
consent of the other party (which consent shall not be unreasonably withheld,
delayed or conditioned).
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7.6 Notices. All notices, requests, consents, demands and
other communications that are required or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (i)
personally delivered, (ii) sent by telecopy or other wire transmission with
successful transmission acknowledged, (iii) sent by Federal Express or other
overnight air express, or (iv) sent by registered or certified mail, return
receipt requested and postage prepaid. All notices delivered to a party shall be
sent to the following respective addresses:
If to the Consultant:
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MCG Capital Corporation
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, CFO
Facsimile: 000-000-0000
And
Attention: Xxxxxx X. Xxxxxxxxxx, Esq., EVP & GC
Facsimile: 000-000-0000
If to the Company:
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Talk America Holdings, Inc.
0000 Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, CFO
Facsimile: (000) 000-0000
And
Attention: Xxxxxxxx X. Lawn, IV, Esq., EVP & GC
Facsimile: (000) 000-0000
or to such other address and/or facsimile number as the party to receive the
notice or request so designates by written notice to the other. Notices pursuant
to subsection (i) or subsection (ii) shall be deemed given on the day delivered
or transmitted, respectively. Notices delivered pursuant to subsection (iii) or
subsection (iv) shall be deemed given on the second business day following the
day sent, whether or not such notice was actually received on such day.
7.7 No Waiver. No waiver of any breach of any provision of
this Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
7.8 Parties Intent to Save Provisions. If any provision of
this Agreement shall be held by a court of competent jurisdiction to be illegal,
invalid or unenforceable, the remaining provisions hereof shall remain in full
force and effect.
7.9 Further Assurances. Each party agrees to take such further
action and
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execute, deliver and/or file such documents or instruments as are necessary to
carry out the terms and purposes of this Agreement.
7.10 Terminology and Construction; Section Headings. All words
in this Agreement, regardless of the number and gender in which they are used,
shall be deemed and construed to include any other number, singular or plural,
and any other gender, masculine, feminine or neuter, as the context of this
Agreement may require. Unless otherwise indicated, any reference in this
Agreement to a Section, Article or Exhibit shall mean the applicable section,
article or exhibit of or to this Agreement. The term " Agreement" includes any
and all exhibits hereto and amendment hereto. The use herein of the word
"parties" or "party" shall mean the Consultant and/or the Company, as the case
may be. The section headings in this Agreement are intended solely for
convenience and shall be given no effect in the construction and interpretation
hereof.
7.11 Limitation on Liability. THE COMPANY AND THE CONSULTANT
EACH AGREES THAT NEITHER PARTY HERETO (NOR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS) SHALL HAVE ANY LIABILITY TO ANY OTHER PARTY HERETO OR TO
ANY OTHER PERSON (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES OR
COSTS SUFFERED OR INCURRED IN CONNECTION WITH OR IN ANY WAY RELATED TO THE
TRANSACTIONS CONTEMPLATED OR THE RELATIONSHIP ESTABLISHED BY THIS AGREEMENT, OR
ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH, EXCEPT FOR
FORESEEABLE ACTUAL LOSSES RESULTING DIRECTLY FROM SUCH PARTY'S OWN GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. MOREOVER, WHETHER OR NOT SUCH DAMAGES
ARE RELATED TO A CLAIM THAT IS SUBJECT TO THE WAIVER EFFECTED ABOVE AND WHETHER
OR NOT SUCH WAIVER IS EFFECTIVE, NEITHER PARTY HERETO (NOR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS) SHALL HAVE ANY LIABILITY WITH RESPECT
TO ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR NON-FORESEEABLE DAMAGES
SUFFERED BY ANY OTHER PARTY HERETO OR ANY OTHER PERSON IN CONNECTION WITH OR IN
ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED OR THE RELATIONSHIP ESTABLISHED
BY THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION
HEREWITH.
7.12 Waiver of Jury Trial. THE COMPANY AND THE CONSULTANT EACH
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (WHETHER AS CLAIM, COUNTER-CLAIM,
AFFIRMATIVE DEFENSE OR OTHERWISE) IN CONNECTION WITH OR IN ANY WAY RELATED TO
ANY OF THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), ACTIONS OR INACTIONS OF THE CONSULTANT OR THE
COMPANY.
7.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and both of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Consulting Agreement
on the date first set forth above.
TALK AMERICA HOLDINGS, INC.
By: /s/ Xxxxxxxx X. Lawn IV
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Name: Xxxxxxxx X. Lawn IV
------------------------
Title: EVP-General Counsel
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MCG CAPITAL CORPORATION
By /s/ Xxxx X. Xxxxxx
------------------------
Name: Xxxx X. Xxxxxx
------------------------
Title: Managing Director and VP
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