EXHIBIT 10.36
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNITY AGREEMENT is made and entered into as of _______________, by
and between TCSI Corporation, a Nevada corporation (the "Company") and
_________________ (the "Indemnitee"), an "Agent" (as hereinafter defined) of the
Company.
RECITALS
A. The Company recognizes that competent and experienced individuals are
reluctant to serve as directors or officers of corporations unless they are
protected by comprehensive liability insurance or indemnification, or both, due
to increased exposure to litigation costs and risks resulting from their service
to such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and officers;
B. The Company and the Indemnitee are aware of the substantial growth in
the number of lawsuits filed against corporate officers and directors in
connection with their activities in such capacities and by reason of their
status as such;
C. The statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous or conflicting, and
therefore fail to provide such directors and officers with adequate or reliable
advance knowledge or guidance with respect to the legal risks and potential
liabilities to which they may become personally exposed or information regarding
the proper course of action to take in performing their duties in good faith for
the Company;
D. The Company and the Indemnitee recognize that plaintiffs often seek
damages in such large amounts and the costs of litigation may be so enormous
(whether or not the case is meritorious), that the defense and/or settlement of
such litigation is often beyond the financial resources of officers and
directors;
E. The Company believes that it is unfair for its directors and officers
and the directors and officers of its subsidiaries to assume the risk of huge
judgments and other expenses which may occur in cases in which the director or
officer received no personal profit and in cases where the director or officer
was not culpable;
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F. The Company, after reasonable investigation, has determined that the
liability insurance coverage presently available to the Company and its
subsidiaries is inadequate and/or unreasonably expensive. The Company believes
that the interests of the Company and its stockholders would best be served by a
combination of such insurance as the Company or its subsidiaries may hereafter
obtain and the indemnification by the Company of the directors and officers of
the Company and its subsidiaries;
G. Section 78.751 Nevada Revised Statues, as amended ("Section 78.751")
empowers the Company to indemnify its officers, directors, employees and agents
by agreement and to indemnify persons who serve, at the request of the Company,
as the directors, officers, employees or agents of another corporation,
partnership, joint venture, trust or other enterprise, and expressly provides
that the indemnification provided by Section 78.751 is not exclusive of other
rights to which those indemnified thereunder may be entitled under the
certificate or articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise;
H. In order to induce and encourage highly experienced and capable
individuals to serve as an officer or director of the Company, to take the
business risks necessary for the success of the Company and its subsidiaries and
to otherwise promote the desirable end that such persons will resist what they
consider unjustifiable lawsuits and claims made against them in connection with
good faith performance of their duties to the Company, secure in the knowledge
that certain expenses, costs and liabilities incurred by them in their defense
of such litigation will be borne by the Company and that they will receive the
maximum protection against such risks and liabilities as may be afforded by law,
the Board of Directors of the Company has determined, after due consideration
and investigation of the terms and provisions of this Agreement and the various
other options available to the Company and the Indemnitee in lieu hereof, that
contractual indemnification as set forth herein is not only reasonable and
prudent but necessary to promote and ensure the best interests of the Company,
its stockholders and its subsidiaries;
I. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or officer of the Company and/or one or more
subsidiaries of the Company, as the case may be, free from undue concern for
unpredictable, inappropriate or unreasonable legal risks and personal
liabilities arising out of or related to such services to the Company and/or one
or more of its subsidiaries; and
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J. The Indemnitee has served or is willing to serve, or continue to serve,
the Company and/or one or more of its subsidiaries provided that he is furnished
the indemnity provided for herein.
K. Certain indemnitees have recently served as an Agent, as defined herein,
in reliance of the Company's promise to enter into this agreement upon the
Company's ability to do so as a Nevada corporation.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and agreements set forth herein, the parties hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) The term "Agent" of the Company shall include any person who is or was
a director, officer, employee or other agent of the Company or was a director,
officer, employee or agent of a predecessor corporation of the Company.
(b) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the name of the Company
or otherwise and whether of a civil, criminal, administrative or investigative
nature, including, but not limited to, actions, suits or proceedings brought
under and/or predicate upon the Securities Act of 1933, as amended, and/or the
Securities Exchange Act of 1934, as amended, and/or their respective state
counterparts and/or any rule or regulation promulgated thereunder, in which the
Indemnitee may be or may have been involved as a party or otherwise, by reason
of the fact that the Indemnitee is or was an Agent of the Company, by reason of
any action taken by him or of any inaction on his part while acting as an Agent
whether or not he is serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.
(c) The term "Expenses" shall be broadly construed and shall include all
direct and indirect costs incurred, paid or accrued of any type or nature
whatsoever, including, without limitation, (i) all attorneys' fees, retainers,
court costs, transcripts, fees of experts, witness fees, travel expenses
(including food and lodging expenses while traveling), duplicating costs,
printing and binding costs, telephone charges, postage, delivery service,
freight or other transpiration fees and expenses and related disbursements; (ii)
all other disbursements and out-of pocket costs; (iii) reasonable compensation
for time
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spend by the Indemnitee for which he is not otherwise compensated by the Company
or any third party (provided the rate of compensation and estimated time
involved is approved in advance by the Board of Directors), actually and
reasonable incurred by the Indemnitee in connection with either the
investigation, defense or appeal of a Proceeding or establishing or enforcing a
right to indemnification under this Agreement, Section 78.751 or otherwise; and
(iv) amounts paid in settlement by or on behalf of the Indemnitee to the extent
permitted by Nevada law; provided, however that "Expenses" shall not include any
judgments, fines, penalties or excise taxes imposed under the Employee
Retirement Income Security Act of 1974, as amended or other excise taxes or
penalties actually levied against the Indemnitee.
(d) References to "other enterprise" shall include employee benefit plans;
references to "fines" shall include any excise tax assessed with respect to any
employee benefit plan; and any service as an Agent with respect to any employee
benefit plan, its participants or beneficiaries, and a person who acts in good
faith and in a manner he reasonably believes to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Company" as
referred to in this Agreement.
(e) "Independent Legal Counsel" means a law firm, member of a law firm, or
attorney that is experienced in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company
or Indemnitee in any matter material to either such party (other than with
respect to matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Legal Counsel" shall not
include any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee's rights under this
Agreement. The Company agrees to pay the reasonable fees of the Independent
Legal Counsel referred to above and to fully indemnify such counsel against any
and all expenses, claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto.
2. Agreement to Serve. Unless the Indemnitee is no longer an Agent, the
Indemnitee agrees to serve and/or continue to serve as an Agent of the Company,
at his will or under separate agreement, as the case may be, in the capacity
Indemnitee currently serves as an Agent of the Company, for so long as he is
duly appointed or elected and qualified in accordance with the applicable
provisions of the Bylaws of the Company until such time as he tenders his
resignation in writing; provided, however, that nothing contained in this
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Agreement is intended to create any right or obligation to continued employment
by Indemnitee in any capacity.
3. Indemnification and Contribution. The Company shall indemnify Indemnitee
to the fullest extent permitted by Nevada Law and the Articles of Incorporation
and Bylaws of the Company in effect on the date hereof or as such Law or
Articles and Bylaws may from time to time be amended (but, in the case of any
such amendment, only to the extent such amendment permits the Company to provide
broader indemnification rights than the Nevada Law and Articles and Bylaws
permitted the Company to provide before such amendment). Such indemnification
shall include, without limitation, the following:
(a) Indemnity in Third Party Proceedings. The Company shall indemnify the
Indemnitee, to the fullest extent permitted by law, if the Indemnitee is a party
to or is threatened to be made a party to or otherwise involved in any
Proceeding (other than a Proceeding by or in the name of the Company to procure
a judgment in its favor) by reason of the fact that he is or was an Agent of the
Company or by reason of any act or inaction by him in any such capacity, against
all Expenses, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by the Indemnitee in connection with the investigation,
defense, settlement or appeal of such Proceeding, if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Company and, in the case of a criminal Proceeding, in addition had no
reasonable cause to believe that his conduct was unlawful. The termination of
any such Proceeding by judgment, order of court, settlement, conviction or upon
a plea of nolo contendere, or its equivalent, does not, of itself, create a
presumption that Indemnitee did not act in good faith in a manner which he
reasonably believed to be in or not opposed to the best interest of the Company,
and with respect to any criminal Proceeding, that such person had reasonable
cause to believe that his conduct was unlawful.
(b) Indemnity in Derivative Actions. The Company shall indemnify the
Indemnitee, to the fullest extent permitted by law, if the Indemnitee is a party
to or threatened to be made a party to or otherwise involved in any Proceeding
by or in the name of the Company to procure a judgment in its favor by reason of
the fact that the Indemnitee was or is an Agent of the Company or by reason of
any act or inaction by him in any such capacity, against all Expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the Indemnitee in connection with the investigation, defense, settlement or
appeal of such Proceeding, but only if the Indemnitee acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interest of
the Company, except that no indemnification under this Paragraph 3 shall be made
for any claim, issue or matter as to which
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the Indemnitee has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the Company or for amounts
paid in settlement to the Company, unless and only to the extent that any court
in which such Proceeding is brought or other court of competent jurisdiction
determines upon application that, in view of all the circumstances of the case,
the Indemnitee is fairly and reasonably entitled to indemnity for such expenses
as the court shall deem proper.
(c) Indemnification of Expenses of Successful Party. Notwithstanding any
other provisions of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
or any claim, issue or matter therein, including the dismissal of an action
without prejudice, the Company shall indemnify the Indemnitee against all
Expenses actually and reasonably incurred by him in connection with the
investigation, defense or appeal of such Proceeding.
(d) Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, the Company will indemnify the Indemnitee if and
whenever he is a witness or is threatened to be made a witness to any Proceeding
to which Indemnitee is not a party, by reason of the fact that he is or was an
Agent or by reason of anything done or not done by him in such capacity, against
all Expenses actually and reasonably incurred by the Indemnitee or on
Indemnitee's behalf in connection therewith.
(e) Contribution. If the indemnification provided in this Agreement is
unavailable and may not be paid to Indemnitee for any reason other than
statutory limitations set forth in applicable law, then in respect of any
threatened, pending or completed Proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such action, suit, arbitration,
proceeding, inquiry or investigation), the Company shall contribute to the
amount of Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company and all
officers, directors or employees of the Company other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and Indemnitee, on the other hand, from the
transaction from which such action, suit, arbitration, proceeding, inquiry or
investigation arose, and (ii) the relative fault of the Company and all
officers, directors or employees of the Company other than Indemnitee who are
jointly liable with Indemnitee (or would be if joined in such action, suit or
proceeding), on the one hand, and of Indemnitee, on the other, in connection
with the events which resulted in such Expenses judgments, fines and amounts
paid in settlement, as well as any other relevant equitable considerations. The
relative fault referred to above shall be determined by reference to, among
other things,
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the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such Expenses
judgments, fines and amounts paid in settlement. The Company agrees that it
would not be just and equitable if contribution pursuant to this subsection were
determined by pro rata allocation or any other method of allocation which does
not take account of the foregoing equitable considerations.
4. Advances of Expenses. Subject to Paragraph 10(a) hereof, the Company
shall advance all Expenses incurred by or on behalf of the Indemnitee in
connection with the investigation, defense, settlement or appeal of any
Proceeding to which the Indemnitee is a party or is threatened to be made a
party by reason of the fact that the Indemnitee is or was an Agent of the
Company. The Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined by a court of
competent jurisdiction that the Indemnitee is not entitled to be indemnified by
the Company as authorized by this Agreement. The advances to be made hereunder
shall be paid by the Company to or on behalf of the Indemnitee within ten (10)
calendar days following delivery of a written request therefore by the
Indemnitee to the Company. The request shall reasonably evidence the Expenses
incurred by the Indemnitee in connection therewith. The Indemnitee's entitlement
to advancement of Expenses shall include those incurred in connection with any
Proceeding by Indemnitee seeking a determination, an adjudication or an award in
arbitration pursuant to this Agreement.
5. Procedure for Indemnification.
(a) Promptly after receipt by the Indemnitee of notice of the commencement
of or the threat of commencement of any Proceeding, the Indemnitee shall, if the
Indemnitee believes that indemnification with respect thereto may be sought for
the Company under this Agreement, notify the Company of the commencement or
threat of commencement thereof. The notice shall include documentation or
information which is necessary for the determination of entitlement to
indemnification and which is reasonably available to the Indemnitee. Delay in so
notifying the Company shall not constitute a waiver or release by Indemnitee or
of any rights hereunder.
(b) Any indemnification requested by the Indemnitee under Paragraph 3
hereof shall be made no later than sixty (60) calendar days after receipt of the
written request of Indemnitee, unless a determination is made within said sixty
(60) day period in accordance with Paragraph 3 that the Indemnitee is not
entitled to indemnification (i) by the Board of Directors of the Company by a
majority vote of a quorum thereof consisting of directors who are not parties to
such Proceedings, or (ii) in the event such a quorum is not obtainable, at the
election of the Company, either by Independent Legal Counsel
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(selected by Company and approved by Indemnitee, such approval not to be
unreasonably withheld) in a written opinion, by the stockholders or by a panel
of arbitrators, one of whom is selected by the Company, another of whom is
selected by the Indemnitee and the last of whom is selected by the first two
arbitrators so selected, that the Indemnitee has not met the relevant standards
for indemnification set forth in Paragraph 3 hereof. Upon making a request for
indemnification, Indemnitee shall be presumed to be entitled to indemnification
under this Agreement and the Company shall have the burden of proof to overcome
that presumption in reaching any contrary determination.
(c) Notwithstanding a determination under Paragraph 5(b) above that the
Indemnitee is not entitled to indemnification with respect to any specific
Proceeding, the Indemnitee shall have the right to apply to any court of
competent jurisdiction in the State of Nevada for the purpose of enforcing the
Indemnitee's right to indemnification pursuant to this Agreement, which
determination shall be made de novo and the Indemnitee shall not be prejudiced
by reason of a determination that he is not entitled to indemnification. The
burden of proving that indemnification or advances are not appropriate shall be
on the Company. Neither the failure of the Company (including its Board of
Directors, its stockholders, Independent Legal Counsel or the panel of
arbitrators) 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 an actual
determination by the Company (including its Board of Directors, its
stockholders, Independent Legal Counsel or the panel of arbitrators) that the
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create any presumption that the Indemnitee has not met the
applicable standard of conduct.
(d) If an initial determination is made or deemed to have been made
pursuant to the terms of this Agreement that the Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in the absence
of (i) a misrepresentation of a material fact by Indemnitee in the request for
indemnification or (ii) a specific finding (which has become final) by a court
of competent jurisdiction that all or any part of such indemnification is
expressly prohibited by law.
(e) The Company shall indemnify the Indemnitee against all Expenses
incurred in connection with any hearing or proceeding under this Paragraph 5
unless a court of competent jurisdiction finds that each of the claims and/or
defenses of the Indemnitee in any such proceeding was frivolous or made in bad
faith.
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6. Indemnity Hereunder Not Exclusive. The provisions for indemnification
and advancement of Expenses contained in this Agreement shall not be deemed
exclusive of any other rights which the Indemnitee may have under any provision
of law, the Company's Articles of Incorporation or Bylaws, any vote of
stockholders or disinterested directors, other agreements, insurance, or other
financial arrangements or otherwise, both as to action in his official capacity
and as to action in another capacity while occupying his position as an Agent of
the Company, except that indemnification, unless ordered by a court pursuant to
Paragraph 3 hereof or for the advancement of Expenses pursuant to Paragraph 4
hereof, may not be made to or on behalf of the Indemnitee if a final
adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or knowing violation of the law and was material to the cause
of action. The Indemnitee's rights hereunder shall continue after the Indemnitee
has ceased acting as an Agent of the Company and shall inure to the benefit of
the heirs and personal representative of the Indemnitee.
7. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments or fines incurred by him in the
investigation, defense, settlement or appeal of a Proceeding but not entitled,
however, to indemnification for the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion thereof to which the
Indemnitee is entitled.
8. Assumption of Defense. In the event the Company shall be obligated to
pay the Expenses of any Proceeding against the Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such Proceeding, with
counsel approved by the Indemnitee, upon the delivery of the Indemnitee of
written notice of its election to do so. After delivery of such notice, approval
of such counsel by the Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to the Indemnitee under this Agreement
for any fees of counsel subsequently incurred by the Indemnitee with respect to
the same proceeding, provided that (i) the Indemnitee shall have the right to
employ his counsel in such Proceeding at the Indemnitee's expense; and (ii) if
(a) the employment of counsel by the Indemnitee has been previously authorized
in writing by the Company, (b) the Company shall have reasonably concluded that
there may a conflict of interest between the Company and the Indemnitee in the
conduct of any such defense or (c) the Company shall not, in fact, have employed
counsel to assume the defense of such Proceeding, the fees and expenses of the
Indemnitee's counsel shall be at the expense of the Company. In the event the
Company assumes the defense of any Proceeding, the Company may settle such
Proceeding in any manner which would impose any penalty or limitation on the
Indemnitee with the Indemnitee's written consent, which consent shall not be
unreasonably withheld.
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9. Insurance. The Company shall, from time to time (including prior to the
expiration of a D&O Insurance (as defined below) policy), make the good faith
determination whether or not it is practicable for the Company to obtain and
maintain a policy or policies of D&O Insurance with reputable insurance
companies providing the officers and directors of the Company with coverage for
liabilities arising out of their acts and/or omissions as Agents, or to ensure
the Company's performance of its indemnification obligations under this
Agreement (collectively, "D&O Insurance" for this Paragraph 9). Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. To the extent the
Company maintains D&O Insurance, Indemnitee shall be covered by such policies in
such a manner as to provide Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company's directors in their
capacity as directors. Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain such insurance if (a) the Company determines in
good faith that (i) such insurance is not reasonably available, (ii) the premium
costs for such insurance are substantially disproportionate to the amount of
coverage provided or (iii) the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit, or (b) Indemnitee is
covered by similar insurance maintained by a subsidiary or parent of the
Company. Notwithstanding any other provision of the Agreement, the Company shall
not be obligated to indemnify Indemnitee for Expenses, judgments, fines, or
amounts paid in settlement, which have been paid directly to Indemnitee by D & O
Insurance. If the Company has D & O Insurance in effect at the time the Company
receives from Indemnitee any notice of the commencement of a Proceeding, the
Company shall give prompt notice of the commencement of such Proceeding to the
insurers in accordance with the procedures set forth in the policy. The Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policy.
10. Exceptions to Indemnification. Notwithstanding any provision herein to
the contrary, the Company shall not be obligated pursuant to the term of this
Agreement:
(a) To indemnify or advance Expenses to the Indemnitee with respect to
proceedings or claims initiated or brought voluntarily by the Indemnitee and not
by way of defense, except with respect to Proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other Statute or
law or otherwise as required under Section 78.751, but such indemnification or
advancement of expenses may be provided by the Company in specific cases if the
Board of Directors finds it to be appropriate; or
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(b) To indemnify the Indemnitee for any Expenses incurred by the Indemnitee
with respect to any proceeding instituted by the Indemnitee to enforce or
interpret this Agreement, if a court of competent jurisdiction determines that
each of the material assertions made by the Indemnitee in such proceeding was
not made in good faith or was frivolous; or
(c) To indemnify the Indemnitee under this Agreement for any amounts paid
in settlement of a Proceeding effected within seven (7) calendar days after
delivery by the Indemnitee to the Company of the notice provided for in
Paragraph 5(a) hereof unless the Company consents to such settlement; or
(d) To indemnify the Indemnitee on account of any Proceeding with respect
to (i) remuneration paid to Indemnitee if it is determined by final judgment or
other final adjudication that such remuneration was in violation of law, (ii)
which final judgment is rendered against the Indemnitee for an accounting of
profits made from the purchase or sale by Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or similar provisions of any federal, state or local
statute, or (iii) which it is determined by final judgment or other final
adjudication that the Indemnitee defrauded or stole from the Company or
converted to his own personal use and benefit business or properties of the
Company or was otherwise knowingly dishonest.
11. Duration and Interpretation of Agreement. It is understood that the
parties hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification to the Indemnitee to the fullest extent now or hereafter
permitted by law. This Agreement shall continue so long as the Indemnitee shall
be subject to any possible Proceeding by reason of the fact that he is or was an
Agent and shall be applicable to Proceedings commenced or continued after
execution of this Agreement, whether arising from acts or omissions occurring
before or after such execution.
12. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever, (i) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and (ii) to the fullest extent
possible, the provisions of this Agreement (including without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable (that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by
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the provisions held invalid, illegal or unenforceable and to give effect to
paragraph 11 hereof.
13. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any provision hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
14. Successor and Assigns. The terms of this Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of Indemnitee and his spouse, assigns, heirs, devisees, executors,
administrators and other legal representatives.
15. Notices. All notices or other communications provided for by this
Agreement shall be made in writing and shall be deemed properly delivered when
(i) delivered personally or by messenger (including air courier), or (ii) by the
mailing of such notice to the party entitled thereto, registered or certified
mail, postage prepaid to the parties at the following addresses (or to such
other addresses designated in writing by one party to the other):
Company: TCSI Corporation
0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: President and Chief Executive
Officer
Indemnitee:
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16. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada.
17. Consent of Jurisdiction. The Company and the Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Nevada for
all purposes in connection with any action or Proceeding which arises out of or
relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Nevada.
18. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery
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of Indemnitee, who shall execute all documents required and shall do all acts
that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
19. This Agreement may be executed in one or more counterparts, each of
which will be deemed an original but both of which together will constitute one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Indemnity
Agreement as of the date first above written.
Company:
TCSI Corporation
By:
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Indemnitee:
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