1
Exhibit (c)(9)
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and XXXXXX X. XXX, an officer of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as an officer of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP.
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
xx.xx. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
2
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
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(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
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faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 0000 Xxx Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000-0000, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Xxxxxxx Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
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IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ Xxxxxx X. Xxx
---------------------------------
Xxxxxx X. Xxx
TECHFORCE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
----------------------------
Title: Chief Executive Officer
---------------------------
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TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and XXXX X. XXXXX, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP. and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
xx.xx. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
7
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
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(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
9
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
8. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 0000 Xxx Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000-0000, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Xxxxxxx Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
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10
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as the date first written above.
INDEMNITEE
/s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx
TECHFORCE CORPORATION
By: /s/ Xxxxxx X. Xxx
------------------------------
Name: Xxxxxx X. Xxx
----------------------------
Title: Chief Financial Officer
---------------------------
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11
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and XXXXXX X. XXXXXX, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP. and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
xx.xx. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
12
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
-2-
13
(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
14
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 0000 Xxx Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000-0000, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Xxxxxxx Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
-4-
15
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
TECHFORCE CORPORATION
By: /s/ Xxxxxx X. Xxx
------------------------------
Name: Xxxxxx X. Xxx
----------------------------
Title: Chief Financial Officer
---------------------------
-5-
16
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and XXXXXXX X. XXXXXX, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP. and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
xx.xx. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
17
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is entitled
to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as the
Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
-2-
18
(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
19
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 0000 Xxx Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000-0000, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Xxxxxxx Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
-4-
20
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
TECHFORCE CORPORATION
By: /s/ Xxxxxx X. Xxx
------------------------------
Name: Xxxxxx X. Xxx
----------------------------
Title: Chief Financial Officer
---------------------------
-5-
21
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and XXXX X. XXXXXXX, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP.; and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
xx.xx. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
22
Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
-2-
23
(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
-3-
24
faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 0000 Xxx Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000-0000, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., 00 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
-4-
25
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
TECHFORCE CORPORATION
By: /s/ Xxxxxx X. Xxx
------------------------------
Name: Xxxxxx X. Xxx
----------------------------
Title: Chief Financial Officer
---------------------------
-5-
26
TECHFORCE CORPORATION
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is effective as of
June 30, 1999, by and between TechForce Corporation, a Georgia corporation (the
"Corporation"), and XXXXXXX X. XXXXXXX, a Director of the Corporation (the
"Indemnitee").
WHEREAS, the Indemnitee has served as a Director of the Corporation and has
continued to do so throughout the negotiations by the Corporation for a
business combination transaction with EQUANT N.V., EQUANT HOLDINGS U.S., INC.
AND EQUANT ACQUISITION CORP. and
WHEREAS, the parties believe it appropriate to memorialize and
reaffirm the Corporation's indemnification obligation to Indemnitee and, in
addition, set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Indemnification.
(a) Indemnifiable Liabilities; Indemnifiable Litigation.
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by any of its
Articles of Incorporation, Bylaws and the Georgia Business
Corporation Code, including but not limited to O.C.G.A.
xx.xx. 14-2-850, et seq., as the same exists or may hereafter
be amended, against all expenses, liability and loss
(including attorneys' fees and disbursements, judgments,
penalties, fines, settlements or other reasonable expenses,
including but not limited to court costs and expert witness
fees) (collectively, "Indemnifiable Liabilities") actually
incurred or suffered by Indemnitee in connection with any
threatened, pending or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether formal or
informal, including any action or suit by or in the right of
the Corporation (collectively, "Indemnifiable Litigation"),
(i) to which Indemnitee is or was a party or is threatened to
be made a party by reason of any action or inaction in
Indemnitee's capacity as a director of the Corporation, or
(ii) with respect to which Indemnitee is otherwise involved
by reason of the fact that Indemnitee is or was serving as a
director of the Corporation, or of any parent, subsidiary or
division, or, while a director of a corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. Notwithstanding the
foregoing, the Corporation shall have no obligation under
this Section to indemnify Indemnitee in connection with an
action instituted by Indemnitee.
(b) Subsequent Change in Law, Etc. No change in the Corporation's
Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code subsequent to the date first above written
shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act,
omission or capacity for which this Agreement provides
indemnification at the time of such act, omission or
capacity. If any change after the date of this Agreement in
any applicable law, statute or rule expands the power of the
Corporation to indemnify the Indemnitee, such change shall be
within the purview of the Indemnitee's rights and the
Corporation's obligations under this
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Agreement. If any change in any applicable law, statute or
rule narrows the right of the Corporation to indemnify the
Indemnitee, such change shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(c) Subrogation. In the event of payment under this Agreement,
the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee,
who shall execute all papers reasonably required and shall
take the actions that may be reasonably necessary to secure
such rights to enable the Corporation effectively to bring
suit to enforce such rights.
2. Interim Expenses. Pursuant to the Corporation's Articles of
Incorporation, the Bylaws and O.C.G.A. ss. 14-2-856, the Corporation
agrees to pay for or reimburse all reasonable expenses (including
attorneys' fees and expenses) incurred by Indemnitee in connection
with any Indemnifiable Litigation in advance of the final disposition
thereof and without requiring security ("Interim Expenses"); provided,
however, that:
(a) Affirmation. Indemnitee furnishes the Corporation a written
affirmation of his good faith belief that with respect to the
subject matter of the Indemnifiable Litigation, he is
entitled to indemnity pursuant to this Agreement;
(b) Repayment Undertaking. Indemnitee furnishes the Corporation a
written undertaking, executed personally or on his behalf, to
repay, without interest, any Interim Expenses if it is
ultimately determined that he is not entitled to
indemnification; and
(c) Accounting. Indemnitee furnishes the Corporation a written
accounting or other documentation evidencing, to the
Corporation's satisfaction, that Indemnitee owes or has
actually incurred the expense for which he seeks payment or
reimbursement and a detailed description of the expense as
the Corporation may reasonably request ("Accounting").
3. Procedure for Demand and Payment. In the event that any claim or
demand for which the Corporation would be liable to Indemnitee
hereunder is asserted against or sought to be collected from
Indemnitee by a third party, Indemnitee shall promptly notify the
Corporation of such claim or demand, specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the
final amount of such claim and demand) (the "Claim Notice"). The
Corporation shall then have ten (10) days from the date of delivery of
the Claim Notice (the "Notice Period") to notify the Indemnitee
whether or not the Corporation disputes its liability to Indemnitee
hereunder with respect to such claim or demand and notwithstanding any
such dispute, whether or not the Corporation desires, at its sole cost
and expense, to defend the Indemnitee against such claim or demand.
(a) Dispute by Corporation as to its Liability. If the
Corporation disputes its liability with respect to such claim
or demand or the amount thereof (whether or not the
Corporation desires to defend the Indemnitee against such
claim or demand as provided in paragraphs (ii) and (iii)
below), such dispute shall be resolved in accordance with
Section 5 hereof. Pending the resolution of any dispute by
the Corporation of its liability with respect to any claim or
demand, such claim or demand shall not be settled without the
prior written consent of the Indemnitee.
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(b) Defense by Corporation. In the event that the Corporation
notifies the Indemnitee within the Notice Period that it
desires to defend the Indemnitee against such claim or
demand, then, except as hereinafter provided, the Corporation
shall have the right to defend the Indemnitee by appropriate
proceedings, which proceedings shall be diligently settled or
prosecuted by them to a final conclusion in such a manner as
to avoid any risk of Indemnitee becoming subject to liability
for any other matter; provided, however, the Corporation
shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to Indemnitee of a release from all
liability in respect of such claim or litigation and provided
that Indemnitee is not required to take any action, is not
prohibited from taking any action or is not required to make
any admission in connection therewith. If Indemnitee desires
to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(c) Failure to Dispute. If the Corporation does not dispute its
liability with respect to any claim or demand as contemplated
by paragraph (b) above, such claim or demand shall
conclusively be deemed to be the responsibility of the
Corporation hereunder.
4. Time of Payments.
(a) Indemnifiable Liabilities. Payments of Indemnifiable
Liabilities to which Indemnitee is entitled pursuant to
Section 1 hereof shall be made no later than twenty (20) days
after request for such payment has been furnished to the
Corporation.
(b) Interim Expenses. Payments of Interim Expenses to which
Indemnitee is entitled pursuant to Section 2 hereof shall be
made no later than twenty (20) days after request for such
payment and the Accounting required under Section 2(c) has
been furnished to the Corporation.
5. Dispute Resolution. Any party may commence a civil action in a court
of appropriate jurisdiction to resolve disputes hereunder. Nothing
contained in this Section shall prevent the parties from settling any
dispute by mutual agreement at any time.
6. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Corporation pursuant to Section 5,
Indemnitee shall also be entitled to be paid for expenses (including
attorneys' fees) incurred in connection with the application for the
court-ordered payments.
7. Insurance. The Corporation shall cause to be maintained in effect from
the date hereof and for six (6) years from the last day on which
Indemnitee serves as a director of the Corporation, with respect to
matters occurring on or prior to that date of last service as a
director, the current directors' and officers' liability insurance
policies maintained by the Corporation (provided that the Corporation
may substitute therefor policies of at least the same coverage
containing terms and conditions that are not materially less
favorable); provided, however, that (A) the Corporation shall use its
reasonable best efforts to purchase competitively priced coverage and
(B) nothing contained herein shall require the Corporation to incur
any annual premium in excess of 150% of the last annual premium paid
prior to the date hereof. If such premiums for such policies of
insurance would at any time exceed 150% of the last annual premium,
then the Corporation shall cause to be maintained policies of
insurance, which in the Corporation's good
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faith determination, provide the maximum coverage available at an
annual premium equal to 150% of such last annual premium.
8. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto,
including, with respect to the Corporation, any corporation or other
entity.
9. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other
right which Indemnitee may have or may hereafter acquire under any
statute, provision of the Corporation's Articles of Incorporation or
Bylaws, agreement, vote of stockholders or disinterested directors, or
otherwise.
10. Notices; Indemnitee's Obligations. Notices to the Corporation shall be
directed to TechForce Corporation, 0000 Xxx Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000-0000, Attn.: President (or such other address as the
Corporation shall designate in writing to Indemnitee) with a copy to
Equant Holdings U.S., Inc., Xxxxxxx Drive, Bohemia, NY 11716,
Attention: General Counsel. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
11. Severability. Should any provision of this Agreement, or any clause
thereof, be held to be invalid, illegal or unenforceable, in whole or
in part, the remaining provisions and clauses of this Agreement shall
remain fully enforceable and binding on the parties.
12. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
13. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Georgia.
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IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
TECHFORCE CORPORATION
By: /s/ Xxxxxx X. Xxx
------------------------------
Name: Xxxxxx X. Xxx
----------------------------
Title: Chief Financial Officer
---------------------------
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