Exhibit 10.52
EXHIBIT E
Xxxxx 00, 0000
XXX Communications, Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Reference is hereby made to that certain Stock Purchase Agreement (the
"Purchase Agreement") dated as of March 10, 1995 by and among International
Telecommunications Group, Ltd. ("ITG"), International Telecommunications
Corporation ("ITC") and RSL Communications, Inc. (the "Corporation"). All
capitalized terms used herein which are not otherwise defined shall have the
meanings ascribed to them in the Purchase Agreement or the Amended and Restated
Certificate of Incorporation of ITG.
This letter, when accepted and agreed to by the Corporation, shall
constitute the separate Indemnity Agreement contemplated by Section 5.12 of the
Purchase Agreement as follows:
1. (a) Each of ITG, ITC, International Telecommunications Europe, Ltd.
("Intelco Europe") and Xxxxxxx X. Xxxxxx ("Xxxxxx") (collectively, the "Parties"
and individually, a "Party" or "Indemnifying Party"), hereby indemnifies and
holds harmless the Corporation, jointly and severally, against any and all
claims, losses, damages or liabilities (or actions in respect thereof) to which
the Corporation may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact by the Parties
contained in the Purchase Agreement, the Other Agreements or any schedule,
exhibit, table or any other information attached to the Purchase Agreement or
otherwise furnished by such Party, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading,
RSL Communications, Inc.
March 10, 1995
Page 2
and Xxxxxx shall indemnify ITC against any loss to ITG or ITC resulting from a
breach by ITC of its covenant contained in the last sentence of Section 5.17 of
the Purchase Agreement, and the Parties, jointly and severally, shall also
reimburse the Corporation for any legal or any other expenses reasonably
incurred in connection with investigating, preparing to defend, defending or
appearing as a third party witness in connection with any such claim, loss,
damage, liability or action; provided, however, that the obligation of each of
the Parties to indemnify the Corporation under the provisions of this
subparagraph (a) shall be limited to an amount equal to the aggregate Purchase
Price plus accrued but unpaid dividends on the Convertible Preferred Stock
purchased by the Corporation pursuant to the Purchase Agreement up until the
date of the unpaid indemnity payment, (b) shall not include any incidental or
consequential damages of the Corporation and (c) shall expire on the earlier of
(i) the date of the closing of a Qualified Initial Public Offering of ITG, ITC
or Intelco Europe or (ii) the date all the Convertible Preferred Stock purchased
by the Corporation pursuant to the Purchase Agreement is either converted or
redeemed pursuant to the terms of the preferred stock as stated in ITG's
Restated Certificate of Incorporation.
(b) In addition, the Parties shall perform their indemnification
obligations under Section 1(a) with respect to counsel fees and expenses and
other expenses reasonably incurred, by making payments to the Corporation in the
amount of the statements of the Corporation's counsel or other statements which
shall be forwarded by the Corporation, such payments to be made within 45 days
of receipt of such statement, and they shall make such payments notwithstanding
the absence of a judicial determination as to the propriety and enforceability
of the obligation to reimburse the Corporation for such expenses and the
possibility that such payment might later be held to have been improper by a
court and a court orders return of such payments, in which event, after a final
order to such effect from which no appeal may be taken, such amounts will be
returned to each of the Parties respectively, with such interest, if any, as the
court may order.
(c) The indemnity provided in Section 1(a) shall be in addition to
any liability which the Parties shall otherwise have and shall extend upon the
same terms and conditions to each person, if any, who controls any of the
Parties within the meaning of the Securities Act of 1933 or the Securities
Exchange Act of 1934.
RSL Communications, Inc.
March 10, 1995
Page 3
(d) Promptly after receipt by the Corporation of notice of the
commencement of any action which may be the subject of this indemnity (including
any governmental investigation), the Corporation shall notify the Indemnifying
Party in writing of the commencement thereof; but the omission to so notify the
Indemnifying Party shall not relieve it from any liability which it may have to
the Corporation under Section 1(a) of this Agreement.
(e) In case any such action shall be brought against the
Corporation, and it shall notify the Indemnifying Party of the commencement
thereof, the Indemnifying Party shall be entitled to participate therein and
jointly with any other Indemnifying Party similarly notified, assume the defense
thereof, and after notice from the Indemnifying Party to the Corporation of its
election so to assume the defense thereof, the Indemnifying Party shall not be
liable to the Corporation under such subsection for any legal or other expenses
subsequently incurred by the Corporation in connection with the defense thereof
other than reasonable costs of investigation. If, however, (i) the Indemnifying
Party has authorized the employment of counsel for the Corporation at the
expense of the Indemnifying Party and (ii) the Corporation shall have reasonably
concluded that representation of the Corporation and the Indemnifying Party by
the same counsel would be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests between
them, and the Corporation so notifies the Indemnifying Party, then the
Corporation shall be entitled to employ counsel different from counsel for the
Indemnifying Party at the expense of the Indemnifying Party and the Indemnifying
Party shall not have the right to assume the defense of the Corporation.
(f) In no event shall the Parties be liable for fees and expenses of
more than one counsel (in addition to local counsel) for the Corporation in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same set of allegations or circumstances.
The counsel with respect to which fees and expenses shall be so reimbursed
pursuant to the second preceding sentence shall be designated in writing by the
Corporation.
(g) If at any time the Corporation shall have requested an
Indemnifying Party to reimburse the Corporation for fees and expenses of counsel
as contemplated by Section 1(b), the Indemnifying Party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such
RSL Communications, Inc.
March 10, 1995
Page 4
settlement is entered into more than 30 days after receipt by such Indemnifying
Party of the aforesaid request and (ii) such Indemnifying Party shall not have
reimbursed the Corporation in accordance with such request prior to the date of
such settlement. No Indemnifying Party shall, without the prior written consent
of the Corporation, effect any settlement of any pending or threatened
proceeding in respect of which the Corporation is or could have been a party and
indemnity could have been sought hereunder by the Corporation, unless such
settlement includes an unconditional release of the Corporation from all
liability on claims that are the subject matter of such proceeding.
2. This agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute a single agreement.
3. Each of the Parties' obligations under this agreement are joint and
several.
4. Any notices or other communications in connection with this Agreement
shall be deemed sufficiently given if mailed by first class mail, postage
prepaid as follows:
(a) if to ITG or ITC, to its address as set forth in the Purchase
Agreement;
(b) if to Xxxxxx, to 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxx
00000; and
(c) if to the Corporation, to its address set forth in the Purchase
Agreement.
RSL Communications, Inc.
March 10, 1995
Page 5
5. This agreement shall be governed by the laws of the State of New York,
without giving effect to the conflict of laws principles thereof.
Very truly yours,
INTERNATIONAL TELECOMMUNICATIONS
GROUP, LTD.
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name:
Title:
INTERNATIONAL TELECOMMUNICATIONS
CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name:
Title:
INTERNATIONAL TELECOMMUNICATIONS
EUROPE, LTD.
By /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: V.P.
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
XXXXXXX X. XXXXXX
Agreed and accepted as of
the date first above written
RSL COMMUNICATIONS, INC.
By /s/ Xxxxxx Xxxxxx
-----------------------------
Name:
Title:
