DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
Exhibit
10.1
This
AGREEMENT (this “Agreement”) is made
effective as of December 10, 2009, by and between TechTeam Global, Inc, a
Delaware corporation (the "Corporation"), and
_______________, a natural person ("Indemnitee"). Each of
the Corporation and the Indemnitee is sometimes referred to herein as a “Party” and
collectively as the “Parties.”
WHEREAS, Indemnitee serves in
an Official Capacity (defined below) and as such is performing a valuable
service for the Corporation;
WHEREAS, Indemnitee has
certain rights to indemnification under the Governing Documents (as defined
herein) and the Delaware General Corporation Law, as amended (“DGCL”), which are not
exclusive, and it is within the power of the Corporation to enter into
indemnification agreements with persons serving in an Official
Capacity;
WHEREAS, the Corporation's
Board of Directors has determined that the policy of the Corporation is to
indemnify the Corporation's directors, officers, employees and agents against
Expenses and Liabilities (as defined herein) incurred by reason of their
Official Capacity;
WHEREAS, the Board of
Directors of the Corporation has determined that the foregoing indemnification
policy is important to the recruitment and retention of qualified, competent
officers and directors to serve the Corporation, and is therefore in the best
interests of the Corporation;
WHEREAS, the Corporation's
Board of Directors has determined that it is appropriate and in the best
interests of the Corporation to offer an indemnification agreement substantially
the same as this Agreement to persons serving in an Official Capacity;
and
WHEREAS, the Corporation and
Indemnitee desire to enter into this Agreement to provide to Indemnitee
additional rights to indemnification in consideration of Indemnitee's continued
service in an Official Capacity;
NOW, THEREFORE, in
consideration of Indemnitee's service or continued service to the Corporation in
Indemnitee's Official Capacity (as defined herein), and the promises and
agreements contained herein and intending to be legally bound hereby, the
Parties hereto agree as follows:
1. Certain
Definitions. For purposes of this Agreement, the following
definitions shall apply to the referenced words or terms:
(a) "Arbitration" in the context of
a Proceeding (as defined herein) shall mean any alternative dispute resolution
procedure or process.
(b) "D&O Insurance" means
directors’ and officers’ liability insurance.
(c) "Expenses" shall include all
direct and indirect costs (including, without limitation, all attorneys' fees
and retainers, and related disbursements, expert witness and advisory fees and
related disbursements, and other out-of-pocket costs) actually and reasonably
incurred or to be incurred by Indemnitee in connection with (i) the
investigation, defense or appeal of a Proceeding, (ii) serving as an actual or
prospective witness in any matter arising out of, or in any way related to,
Indemnitee's Official Capacity, (iii) any voluntary or required interviews or
depositions with respect to any matter arising out of, or in any way related to,
Indemnitee's Official Capacity, and (iv) any Permitted Action (as defined
herein) brought against the Corporation by Indemnitee directly, or by means of
impleader, cross-complaint, counterclaim or other proceeding.
(d) "Governing Documents" shall
mean the Certificate of Incorporation and Bylaws of the Corporation, as amended
from time to time.
(e) "Indemnitee's Affiliates" shall
mean Indemnitee's spouse, members of Indemnitee's immediate family, and
Indemnitee's representative(s), guardian(s), conservator(s) estate, executor(s),
administrator(s), and trustee(s), as the case may be, as understood in, or
relevant to, the context of a particular provision of this
Agreement.
(f) "Liabilities" shall include
judgments, settlements, fines, damages, whether compensatory, punitive or
exemplary, ERISA or IRS or other excise taxes, penalties, and all other
liabilities of any kind or nature incurred by Indemnitee as a result of a
Proceeding.
(g) "Official Capacity" means
Indemnitee's service as an officer and/or director (including serving as a
member of any committee of the board of directors), employee or agent of the
Corporation or, “at the request of the Corporation” of any Other
Enterprise. For the purposes of this Agreement, Indemnitee's service
in Indemnitee's Official Capacity to any Other Enterprise shall be presumed to
be service “at the request of the Corporation” unless it is conclusively
determined to the contrary by a court of competent jurisdiction. With respect to
such presumption, it shall not be necessary for Indemnitee to show any actual or
prior request by the Corporation or its Board of Directors for such service to
such Other Enterprise.
(h) "Other Enterprise" shall
include without limitation any other corporation, partnership, joint venture,
trust, employee benefit plan, or other entity or association of any kind or
nature which is controlled by, or affiliated with, the Corporation, or of which
the Corporation is a creditor, or sole or partial owner.
(i) "Permitted Action" includes (i)
any Proceeding against the Corporation brought by Indemnitee, alone or with
others, in connection with, or related to, the defense by Indemnitee of any
Proceeding brought against Indemnitee by a third party, the Corporation, or any
Other Enterprise (or brought on behalf of the Corporation, including by means of
a derivative action), whether by a separately initiated Proceeding, or
impleader, cross-claim, counterclaim, or otherwise; (ii) a Proceeding brought by
Indemnitee or Indemnitee's Affiliates to establish or enforce a right of
indemnity under this Agreement, an applicable D&O Insurance policy, the
Governing Documents, or any other agreement or law pertaining to indemnification
of Indemnitee, or to recover Expenses or a Liability of Indemnitee resulting
from a Proceeding against Indemnitee; (iii) a Proceeding against the Corporation
or any Other Enterprise brought by Indemnitee which is approved in advance by a
majority of the Corporation's independent directors, excluding Indemnitee; and
(iv) a Proceeding brought by Indemnitee which is required under any law; and
with respect to (i) through (iv) above, any of the identified actions shall be
considered a Permitted Action regardless of whether Indemnitee is ultimately
determined to be entitled to the relief sought.
(j) "Proceeding" shall include any
threatened, pending, actual or completed inquiry, interview, investigation,
action, suit, arbitration or other proceeding, whether civil, administrative,
criminal, or any other type of proceeding whatsoever, including an appellate
action of any kind, brought by (i) the Corporation (or brought on behalf of the
Corporation, including a derivative action) against or involving Indemnitee or
Indemnitee's Affiliates by reason of, or in any way related to, Indemnitee's
Official Capacity; (ii) Indemnitee, against or involving the Corporation or any
Other Enterprise by reason of, or in any way related to, Indemnitee's Official
Capacity or rights Indemnitee has against the Corporation or any Other
Enterprise under this Agreement, the Governing Documents, or any other agreement
or law (but only with respect to a Permitted Action); (iii) any third party
against or involving Indemnitee or Indemnitee's Affiliates by reason of, or in
any way related to, Indemnitee's Official Capacity, directly or by impleader,
cross-claim, counterclaim, or other means; or (iv) Indemnitee against any third
party, other than the Corporation, by reason of, or in any way related to,
Indemnitee's Official Capacity, directly or by impleader, cross claim,
counterclaim or other means.
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2. Indemnification.
(a) Subject
only to the provisions of Sections 5 and 7 of this Agreement, the Corporation
shall hold harmless and indemnify Indemnitee from and against any and all
Expenses and Liabilities with respect to any Proceedings to which Indemnitee may
be subject by reason of Indemnitee's Official Capacity with the Corporation or
any Other Enterprise to the fullest extent permitted by the DGCL, the Governing
Documents and this Agreement as the DGCL and the Governing Documents may be
hereafter amended, modified or interpreted subsequent to the execution of this
Agreement (but only to the extent that such amendment, modification or
interpretation permits the Corporation to provide broader indemnification rights
than the DGCL and the Governing Documents permitted prior to adoption of such
amendment or modification or the issuance of such interpretation).
(b) Notwithstanding
any other provisions of this Agreement, if Indemnitee is the subject of a
Proceeding by reason of, or in any way related to, Indemnitee's Official
Capacity, and is successful in the defense of (i) the entire Proceeding, or (ii)
one or more claims brought as part of the Proceeding, the Indemnitee shall be
fully indemnified by the Corporation as to all Expenses incurred with respect to
the Proceeding, or the particular claims, as the case may be.
(c) If
a Proceeding against Indemnitee includes a claim against (i) one or more of
Indemnitee's Affiliates, or (ii) a property interest of one or more of
Indemnitee's Affiliates, and such Proceeding against Indemnitee is by reason of,
or in any way related to, Indemnitee's Official Capacity with the Corporation or
any Other Enterprise, this Agreement shall also include indemnification of the
Indemnitee's Affiliates with respect to their Expenses and Liability, assuming
that Indemnitee would have been entitled to indemnification under Section 2(a)
if the Proceeding had been brought directly against Indemnitee. The Expenses of
such Indemnitee Affiliate shall be advanced pursuant to Section 5 to the extent
Indemnitee would have been entitled to advancement of Expenses had the
Proceeding been directly against Indemnitee.
(d) The
Corporation and Indemnitee acknowledge that state or federal law or regulations,
or applicable public policy, may prohibit the Corporation from indemnifying
Indemnitee with respect to a Proceeding, or one or more claims in a Proceeding
under this Agreement or otherwise.
3. Partial
Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Corporation for any portion of Expenses or
Liability incurred in connection with any Proceeding, but not for all of the
Expenses or Liability incurred in connection with any Proceeding, the
Corporation shall nevertheless indemnify Indemnitee for the portion of such
Expenses and Liability to which Indemnitee is entitled.
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4. Contribution.
(a) Whether
or not the indemnification provided in Sections 2 and 3 hereof is available, in
respect of any Proceeding in which the Corporation is jointly liable with
Indemnitee (or would be if joined in such Proceeding), the Corporation shall
pay, in the first instance, the entire amount of any judgment or settlement of
such Proceeding without requiring Indemnitee to contribute to such payment and
the Corporation hereby waives and relinquishes any right of contribution it may
have against Indemnitee. The Corporation shall not enter into any
settlement of any Proceeding in which the Corporation is jointly liable with
Indemnitee (or would be if joined in such Proceeding) unless such settlement
provides for a full and final release of all claims asserted against
Indemnitee.
(b) The
Corporation hereby agrees to fully indemnify and hold Indemnitee harmless from
any claims of contribution which may be brought by officers, directors or
employees of the Corporation other than Indemnitee, who may be jointly liable
with Indemnitee.
(c) To
the fullest extent permissible under applicable law, if the indemnification
provided for in this Agreement is unavailable to Indemnitee for any reason
whatsoever, the Corporation, in lieu of indemnifying Indemnitee, shall
contribute to the amount incurred by Indemnitee, whether for Liabilities and/or
for Expenses, in connection with any claim relating to an indemnifiable event
under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect (i) the
relative benefits received by the Corporation and Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the
relative fault of the Corporation (and its directors, officers, employees and
agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
5. Advancement of
Expenses.
(a) Until
the assumption of the defense of a Proceeding by the Corporation pursuant to
Section 7 of this Agreement or after Indemnitee's employment of separate counsel
at Indemnittee’s expense as permitted under Section 7, expenses of Indemnitee in
defending or responding to a Proceeding shall be paid by the Corporation, within
fifteen (15) days of the receipt of invoices therefor from Indemnitee, in
advance of the final disposition of such Proceeding.
(b) Expenses
of Indemnitee in prosecuting a Permitted Action shall be paid by the Corporation
within fifteen (15) days of the receipt of invoices therefor from Indemnitee, in
advance of the final disposition of such Permitted Action.
(c) Indemnitee's
initial submission of an invoice for reimbursement of
Expenses incurred in connection with, or related to, any Proceeding shall be
accompanied by a written undertaking by or on behalf of Indemnitee to repay all
or a portion of the amounts advanced, if it shall be determined by a final
adjudication of a court or administrative agency having jurisdiction in the
matter that Indemnitee is not entitled to indemnification by the Corporation
with respect to all or a portion of the advanced Expenses.
(d) Notwithstanding
the foregoing, in no event shall any advance be made in instances where the
Corporation’s Board of Directors or independent legal counsel reasonably
determines that such Indemnitee knowingly breached his or her duty to the
Corporation or its shareholders.
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6. Maintenance of D&O
Insurance.
(a) The
Corporation represents that it presently has in force and effect D&O
Insurance coverage under the policies with the insurance carriers, and in the
amounts set forth on Attachment A (the "Insurance
Policies").
(b) Subject
only to the provisions of Section 6(c) hereof, the Corporation agrees that, so
long as Indemnitee shall continue to serve in an Official Capacity, and
thereafter for so long as Indemnitee shall be subject to any possible Proceeding
in any way related to Indemnitee's Official Capacity, the Corporation shall, at
its sole expense, purchase and maintain in effect for the benefit of Indemnitee
one or more valid, binding and enforceable policies of D&O Insurance
providing, in all respects, coverage at least comparable to that presently
provided pursuant to the Insurance Policies. All decisions as to
whether and to what extent the Corporation maintains D&O Insurance shall be
made by the Board of Directors of the Corporation.
(c) The
Corporation shall not be required to maintain D&O Insurance coverage at
least comparable to that provided by the Insurance Policies if (i) said
Insurance is not available, or (ii) in the reasonable business judgment of a
two-thirds majority of the directors of the Corporation, the premium cost for
such insurance is substantially disproportionate to the benefits of such
coverage. In making any determination to eliminate or reduce
coverage, the Board of Directors shall seek the advice of independent legal
counsel or other advisors experienced in the review and analysis of D&O
Insurance coverage.
(d) Promptly
after (i) learning of facts and circumstances which may give rise to a
Proceeding, the Corporation shall notify its D&O Insurance carriers, if such
notice is required by the applicable insurance policies, and any other insurance
carrier providing applicable insurance coverage to the Corporation, of such
facts and circumstances, or (ii) receiving notice of a Proceeding, whether from
Indemnitee, or otherwise, the Corporation shall give prompt notice to its
D&O Insurance carriers, and any other insurance carriers providing
applicable insurance coverage to the Corporation, in accordance with the
requirements of the respective insurance policies. The Corporation shall,
thereafter, take all appropriate action to cause such insurance carriers to pay
on behalf of Indemnitee, all Expenses incurred or to be incurred, and liability
incurred, by Indemnitee with respect to such Proceeding, in accordance with the
terms of the applicable insurance policies.
7. Notification to Corporation
by Indemnitee of a Proceeding or Permitted Action; Defense of Proceeding by
Corporation.
(a) Promptly
after receipt by Indemnitee of notice of the commencement of a Proceeding or
Permitted Action, Indemnitee will, if a claim for indemnification with respect
thereto is to be made by Indemnitee against the Corporation under this
Agreement, or otherwise, notify the Corporation of such Proceeding or Permitted
Action; but the omission so to notify the Corporation will not relieve the
Corporation from any liability which it may have to Indemnitee under this
Agreement.
(b) With
respect to a Proceeding of which the Corporation has notice pursuant to Section
7(a) or otherwise:
(i) Except
as otherwise provided below, the Corporation shall, alone or jointly with any
other indemnifying party, assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee. From and after the Corporation's assumption of the
defense of the Proceeding, the Corporation shall not be liable to Indemnitee
under this Agreement for any Expenses subsequently incurred by Indemnitee in
connection with the defense of such Proceeding.
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(ii) Indemnitee
shall have the right, in addition to the rights set forth in Section 7(a)(i)
related to approval of counsel, to employ Indemnitee's own counsel in the
defense of the Proceeding, but the fees and expenses of such counsel incurred
after the Corporation has assumed the defense of such Proceeding, shall be at
the expense of Indemnitee unless (I) the employment of counsel by Indemnitee has
been authorized by a majority of the directors of the Corporation, excluding
Indemnitee, (II) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Indemnitee in the conduct of
the defense of the Proceeding, and such conclusion is supported by an opinion of
counsel, or (III) the Corporation shall not in fact have timely employed counsel
to assume the defense of the Proceeding, in each of which cases the Expenses of
Indemnitee shall be advanced by the Corporation pursuant to Section 5 and
indemnified pursuant to Section 2.
(c) The
Corporation shall not be liable to indemnify Indemnitee under this Agreement for
any amounts paid in settlement of any Proceeding or Permitted Action affected
without the Corporation's prior written consent, which consent shall be
determined by majority vote of the Corporation's directors, excluding
Indemnitee. The Corporation shall not settle any action or claim in any manner
which would impose any penalty, limitation, Expense or Liability on Indemnitee
without Indemnitee's prior written consent. Neither the Corporation nor
Indemnitee will unreasonably withhold their consent to any proposed
settlement.
8. No Obligation or Right of
Indemnitee or Corporation to Continuation of Indemnitee's Official
Capacity.
(a) The
Corporation expressly confirms and agrees that it has entered into this
Agreement, and assumed the obligations imposed on the Corporation in this
Agreement, in order to induce Indemnitee to serve or continue to serve the
Corporation in Indemnitee's Official Capacity, and acknowledges that Indemnitee
is relying upon this Agreement in serving or continuing to serve in such
Official Capacity. The rights to indemnification and advancement of Expenses
created by or provided pursuant to this Agreement are bargained-for conditions
of Indemnitee's acceptance and/or maintenance of Indemnitee's Official Capacity
with the Corporation. Such rights shall continue after Indemnitee has ceased to
serve the Corporation or any Other Enterprise in Indemnitee's Official Capacity,
and shall inure to the benefit of Indemnitee and Indemnitee's
Affiliates.
(b) Indemnitee
agrees that neither the terms of this Agreement, nor the rights and benefits
conferred on the Corporation, any Other Enterprise or Indemnitee under this
Agreement, prohibits, limits or in any way restricts the Board of Directors of
the Corporation from (i) seeking Indemnitee's resignation from his or her
Official Capacity with the Corporation or any Other Enterprise, (ii) removing,
or seeking the removal of Indemnitee from his or her Official Capacity with the
Corporation or any Other Enterprise, or (iii) declining to re-nominate or
re-engage Indemnitee for his or her Official Capacity with the Corporation or
any Other Enterprise, nor shall this Agreement be construed or interpreted as
creating a contract of employment or other engagement with
Indemnitee.
(c) The
Corporation agrees that neither the terms of this Agreement, nor the rights and
benefits provided to Indemnitee under this Agreement, prohibit, limit, or
restrict in any way, Indemnitee's rights to resign Indemnitee's Official
Capacity with the Corporation or any Other Enterprise at any time subsequent to
the execution of this Agreement.
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9. Enforcement of this
Agreement by Indemnitee or Indemnitee's Affiliates. To the fullest extent
permitted by the DGCL or otherwise, Indemnitee and Indemnitee's Affiliates shall
have the right to institute a Proceeding to enforce and/or recover damages for
breach of the rights of indemnification and advancement of Expenses created by,
or provided pursuant to the terms of, this Agreement, the Governing Documents,
the DGCL or other applicable law, or any other agreement entered into between
Indemnitee and the Corporation subsequent to the execution of this Agreement,
and such Proceeding shall be a Permitted Action for purposes of this
Agreement. The burden of proving that indemnification or advances are
not appropriate shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors or independent legal counsel)
to have made a determination prior to the commencement of such action that
indemnification or advances are proper in the circumstances because the
Indemnitee has met the applicable standard of conduct, nor a determination by
the Corporation (including its Board of Directors or independent legal counsel)
that the Indemnitee has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the Indemnitee has not met
the applicable standard of conduct. The Indemnitee's Expenses incurred in
connection with successfully establishing his right to indemnification or
advances, in whole or in part, in any such Proceeding shall also be paid by the
Corporation.
11. Non-Exclusivity. The
rights to indemnification and advancement of Expenses provided to Indemnitee
pursuant to this Agreement shall not be deemed exclusive of any other rights of
indemnification or advancement of Expenses to which Indemnitee may be entitled
under any statute, common law, other agreement, the Governing Documents, a vote
of shareholders or disinterested directors, insurance policy or otherwise, both
as to actions in Indemnitee's Official Capacity, and as to actions in any other
capacity while holding Indemnitee's Official Capacity with the Corporation or
any Other Enterprise, and shall not limit in any way any right the Corporation
may have to create additional or independent or supplementary indemnity
obligations for the benefit of Indemnitee. To the extent that a
change in the DGCL or other applicable law (whether by statute or judicial
decision), permits greater indemnification by agreement than would be afforded
currently under the Governing Documents, it is the intent of the Parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefit so afforded by
such change.
12. Severability. Each of
the provisions of this Agreement is a separate and distinct agreement
independent of the others, and if any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid illegal or unenforceable by a final judgment of a court, administrative
agency or arbitration panel, having jurisdiction of the matter, for any reason
whatsoever, the remaining provisions of this Agreement and the application of
such provision to other persons or circumstances shall not be affected thereby.
The Parties hereto expressly agree that any provision hereof that is determined
to be invalid, illegal or unenforceable shall be construed and modified by the
court, administrative agency or arbitration panel finding such provision
invalid, illegal or unenforceable to the extent necessary so as to render such
provision valid and enforceable as against all persons or entities to the
maximum extent permitted by law. Furthermore, if this Agreement shall
be invalidated in its entirety on any ground, then the Corporation shall
nevertheless indemnify Indemnitee to the fullest extent permitted by the
Governing Documents, the DGCL or any other applicable law.
13. Governing Law. This
Agreement shall be construed, performed and enforced in accordance with the laws
of the State of Delaware (without giving effect to its principles or rules of
conflict of laws to the extent such principles or rules would require or permit
the application of the laws of another jurisdiction) as to all matters,
including, but not limited to, matters of validity, construction, effect,
performance and remedies.
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14. Consent to Jurisdiction and
Venue.
(a) Each
of the Parties irrevocably agrees that any legal action or proceeding with
respect to this Agreement and the rights and obligations arising hereunder, or
for recognition and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder brought by the other Party hereto
or its successors or assigns, shall be brought and determined exclusively in the
Delaware Court of Chancery and any state appellate court therefrom within the
State of Delaware (or, if the Delaware Court of Chancery declines to accept
jurisdiction over a particular matter, any state or federal court within the
State of Delaware). Each of the Parties hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the personal jurisdiction of the
aforesaid courts and agrees that it will not bring any action relating to this
Agreement in any court other than the aforesaid courts.
(b) Each
of the Parties hereby irrevocably waives, and agrees not to assert as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the jurisdiction
of the above named courts for any reason other than the failure to serve in
accordance with this Section 14, (b) any claim that it or its property is exempt
or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or
otherwise) and (c) to the fullest extent permitted by the applicable law, any
claim that (i) the suit, action or proceeding in such court is brought in an
inconvenient forum, (ii) the venue of such suit, action or proceeding is
improper or (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
(c) The
Parties agree that the delivery of process or other papers in connection with
any such action or proceeding in the manner provided in Section 15 hereof, or in
such other manner as may be permitted by applicable Law, shall be valid and
sufficient service thereof.
15. Notices.
(a) All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) personally delivered
to, and receipted for by, the intended receiving Party, or an authorized
representative of the intended receiving Party, (ii) mailed by certified or
registered mail, postage prepaid, within the United States, on the third
business day after the date on which it is mailed, (iii) delivered by reputable
overnight courier on the date of delivery evidenced by such carrier, or (iv)
transmitted by facsimile machine on the date of receipt indicated by recipient's
facsimile machine.
(b) Such
notices shall be given as follows:
(i) If
to Indemnitee to the following address or facsimile number, or such other
address or facsimile number as Indemnitee may furnish in writing to the
Corporation:
[INSERT ADDRESS AND FACSIMILE
NUMBER]
(ii) If
to the Corporation to:
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TechTeam
Global, Inc.
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00000
Xxxx 00 Xxxx Xxxx
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Xxxxxxxxxx,
XX 00000
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Facsimile
No.: (000) 000-0000
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Attention:
General Counsel
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16. Modification. No
amendment, modification, termination or cancellation of this Agreement shall be
effective unless in writing and signed by both of the Parties
hereto.
17. Survival. The
provisions of this Agreement shall survive the termination of Indemnitee's
Official Capacity with the Corporation, and inure to the benefit of Indemnitee
and Indemnitee's Affiliates. The Corporation shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the
Corporation, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken place.
18. Subrogation. In the
event of payment of Expenses or Liabilities pursuant to this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee and Indemnitee's Affiliates against any person
or organization. Indemnitee and Indemnitee's Affiliates shall execute all
documents required and shall do all acts that may be necessary to secure such
rights and to enable the Corporation effectively to bring a Proceeding to
enforce such rights.
19. Binding Effect;
Successors. This Agreement shall be binding upon and inure to the benefit
of, and be enforceable by, the Corporation, Indemnitee and Indemnitee's
Affiliates, and their respective successors in interest, including with respect
to the Corporation, succession by purchase, merger, consolidation, or sale of
substantially all of the business and/or assets of the Corporation. The
Corporation shall require and cause any successor entity to all, substantially
all, or a substantial part of, the business and/or assets of the Corporation, by
written agreement to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Corporation would be required to
perform this Agreement if no succession had taken place.
20. Prior Agreements; Conflict
With Governing Documents. This Agreement shall supersede and replace any
other agreement among the Parties hereto executed prior to the date of this
Agreement with respect to the subject matter hereof. To the fullest extent
permitted by law, in the event of a conflict between the terms of this Agreement
and the terms of the Governing Documents, the terms of this Agreement shall
prevail.
21. Headings. The section
headings contained in this Agreement are for reference purposes only and shall
not effect in any way the meaning or interpretation of this
Agreement.
22. Counterparts; Effectiveness. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. In the event that any signature to this Agreement is
delivered by facsimile transmission or by e-mail delivery of a portable document
format (.pdf or similar format) data file, such signature shall create a valid
and binding obligation of the Party executing (or on whose behalf such signature
is executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof. This Agreement shall become effective
when each Party hereto shall have received a counterpart hereof signed by all of
the other Parties hereto. Until and unless each Party has received a counterpart
hereof signed by the other Party hereto, this Agreement shall have no effect and
no Party shall have any right or obligation hereunder (whether by virtue of any
other oral or written agreement or other communication).
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IN WITNESS WHEREOF, the
Parties hereto have duly executed this Agreement and affixed their signatures
hereto as of the date first above written.
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TECHTEAM
GLOBAL, INC.
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||
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By:
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_______________________
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|
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
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Corporate
Vice President, General Counsel and Secretary
|
|
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____________________________
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||
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Indemnitee:
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||
10
ATTACHMENT
A
Primary
Policy:
National
Union Fire Insurance Co. of Pittsburg, Policy No. 00-000-00-00, Effective Dates
July 1, 2009 to June 30, 2010, Limit of Liability $10,000,000.
Excess
Policies:
Travelers
Insurance Company, Policy No. EC01202121, Effective Dates July 1, 2009 to June
30, 2010, Limit of Liability $10,000,000 excess of $10,000,000.
Great
American Insurance Company, Policy No. NSX5236581, Effective Dates July 1, 2009
to June 30, 2010, Limit of Liability $5,000,000 excess of
$20,000,000.
Side
A Coverage
Federal
Insurance Company, Policy No. 8208-6382, Effective Dates July 1, 2009 to June
30, 2010, Limit of Liability $5,000,000.
11
