Employment Agreement - Thomas M. Walsh




EXHIBIT
10.1




EMPLOYMENT
AGREEMENT







THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of the 9th day of
May, 2005, between Talk America Holdings, Inc., a Delaware corporation
(“Company”), and Thomas Walsh (“Employee”), and amends and supercedes that
certain Employment Agreement dated August 7, 2000, as amended, among Talk.com
Inc. and Thomas Walsh.




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 for a period of
three (3) years after the date hereof, 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 Senior Vice President -
Finance and Treasurer of the Company and the Senior Vice President - Finance and
Treasurer of Talk America Inc., a Pennsylvania corporation which is a
wholly-owned subsidiary of the 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 Chief Executive Officer or 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 ( collectively, “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, trustworthy, business like and efficient 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 director
of another corporation if the Chairman of the Board or the Chief Executive
Officer of Company shall have consented to Employee’s accepting such
directorship.










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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 $200,000, 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 Company’s Chief
Executive Officer and the Board.




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. In
addition, during the Term, Company will provide Employee with an automobile, as
Company shall determine, and Company shall keep such automobile fully insured in
accordance with Company’s practices for similarly situated
employees.




4.4 Expenses. Company
shall promptly reimburse Employee for all normal and reasonable 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.




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) month 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 ; (iii) Employee’s gross
neglect or unreasonable refusal to perform the duties assigned to Employee under
or pursuant to 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; or (iv)
conviction or plea of nolo contendere by Employee to a felony or a misdemeanor
involving moral turpitude.










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5.4 By
Employee.




(i) Employee
may terminate employment hereunder for any reason (other than Good Reason) upon
sixty (60) 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 thirty (30) days of receipt of written notice
of said material breach;




(b) Failure
by Company to maintain Employee in a title and position commensurate with that
referred to in Section 3 of this Agreement without Employee’s express written
consent;




(c) The
assignment to Employee of any duties inconsistent with the Employee’s title and
position as contemplated by Section 3 of this Agreement, or any other action by
Company that results in a diminution of Employee’s position, authority, duties
or responsibilities without Employee’s express written consent; or




(d) The
relocation of Company’s offices at which Employee is principally employed to a
location more than 50 miles away from New Hope, Pennsylvania, or Company’s
requiring Employee to be based anywhere other than Company’s offices in New
Hope, Pennsylvania without Employee’s express written consent 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 offices in Virginia and Florida).




5.5 Without
Cause. Company
may otherwise terminate the Term at any time upon written notice to
Employee.










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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 the 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 first 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 Good Reason. 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 (a) any Base Salary, Due Bonus
and Benefits that may have been earned and are due and payable but that have not
been paid as of the date of termination and (b) reimbursements for expenses that
may have been incurred, 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 Base Salary, 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, (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 first 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 compensation except for: (a) any Base Salary,
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 such Disability; and (b) reimbursement
for expenses that may have been incurred but that have not been paid as of the
date of Disability, subject to the requirements of Section 4.4 hereof.
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.










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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, 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; or




7.1.5  any other
event occurs that the Board determines, in its discretion, would materially
alter the structure of Company or its ownership.




      
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.










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7.3 Termination
after Change in Control.




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) twelve 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 one year 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 at the
Company’s expense; 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 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.










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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, 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 or its Affiliates, without the prior written
consent of Company, and the same shall be promptly returned by Employee on the
termination of Employee’s employment with Company, its Affiliates or at any time
prior thereto upon the request of Company.




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.
Employee agrees that, during the Term and for a period one year immediately
following termination of his employment with Company for any reason, provided
that Company has met and continues to meet its obligations pursuant to the terms
of this Agreement following termination, he will not act either directly or
indirectly as a partner, officer, director, five or more percent stockholder,
employee, employer or consultant or render advisory or other services for, or in
connection with, or become interested in, or make any substantial financial
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. Employee further agrees for a period of one year
immediately following termination of his employment with the Company for any
reason, provided that Company has met and continues to meet its obligations
pursuant to the terms of this Agreement following termination, 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 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.










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13. Company
Representations. Company
represents and warrants (i) that it is duly authorized and empowered to enter
into this Agreement, (ii) that the performance of its obligations under this
Agreement will not 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.




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 employee benefit plan, program or arrangement 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 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:




Thomas
Walsh

313
Heatherfield Drive

Souderton,
PA 18964




If to
Company:




Talk
America Holdings, Inc.

6805
Route 202

New Hope,
Pennsylvania 18938

Attn:
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. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their heirs, personal representatives and successors, including without
limitation any Affiliate to which Company may assign this Agreement. Employee
may not assign or transfer his rights to compensation and benefits, except by
will or operation of law and except as provided in Section 16
above.




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.




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/
Thomas Walsh  

Thomas
Walsh

Employee