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Exhibit (c)(5)
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Agreement") is effective as of June
30, 1999, by and among Xxxx X. Xxxxxxx ("Indemnitor") and Equant N.V., Equant
Holdings U.S., Inc. and Equant Acquisition Corp. (each, an "Indemnified Party"
and collectively, the "Indemnified Parties").
WHEREAS, simultaneously with the execution of this Agreement, the
Indemnified Parties are entering into that certain Agreement and Plan of Merger
dated as of the date hereof (the "Merger Agreement") among the Indemnified
Parties and TechForce Corporation (the "Company"); and
WHEREAS, it is a condition to the Indemnified Parties entering into the
Merger Agreement that Indemnitor enter into this Agreement with the Indemnified
Parties;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Definitions: Capitalized terms used, but not defined herein, shall have
the meanings ascribed thereto in the Merger Agreement.
2. Indemnification:
2.1 Duty to Indemnify. Notwithstanding the provisions of Section 9.1 of
the Merger Agreement regarding the non-survival of the Company's representations
and warranties contained in the Merger Agreement, Indemnitor agrees as follows:
(a) To indemnify, defend and hold harmless each Indemnified Party
and their affiliates (including any officer, director, stockholder,
partner, member, employee, agent or representative of any thereof) (each a
"Parent Affiliate") to the extent provided in Section 2.5 from and against
all assessments, losses, damages, liabilities, costs and expenses,
including without limitation, interest, penalties and reasonable fees and
expenses of legal counsel chosen by any Indemnified Party or Parent
Affiliate (collectively, "Damages"), imposed upon or incurred by any
Indemnified Party or any Parent Affiliate arising out of or in connection
with or resulting from (i) any breach of any representation or warranty of
the Company if, at the time such representation or warranty was made, it
was made fraudulently and Indemnitor had actual knowledge of such fraud,
or (ii) nonfulfillment, at any time prior to the consummation of the
Offer, of any covenant or agreement by the Company if, at the time such
covenant was given, it was given with the fraudulent intent that it never
be performed and Indemnitor had actual knowledge of such fraudulent
intent, in each case contained in or made pursuant to the Merger Agreement
or any Schedule thereto, or any certificate furnished or to be furnished
to any Indemnified Party thereunder.
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(b) The Indemnitor shall, to the extent provided herein, reimburse
an Indemnified Party promptly after delivery of an Indemnification Notice
(defined below) certifying that the Indemnified Party has incurred Damages
after compliance with the terms of this Section 2; provided that the
Indemnitor shall have the right to contest any such Damages in good faith.
(c) Notwithstanding anything herein to the contrary, Indemnitor
shall have no indemnification obligations hereunder unless the Indemnified
Parties have consummated the Merger.
2.2 Notice of Damages. An Indemnified Party will give the Indemnitor
prompt notice (hereinafter, the "Indemnification Notice") of any demands,
claims, actions or causes of action (collectively, "Claims") asserted against
the Indemnified Party. Failure to give such notice shall not relieve the
Indemnitor of any obligations which the Indemnitor may have to the Indemnified
Party under this Section 2, except to the extent that such failure has
materially adversely prejudiced the Indemnitor under the provisions for
indemnification contained in this Agreement.
2.3 Conditions of Indemnification of Third Party Claims. The obligations
and liabilities of Indemnitor under Section 2.1 hereof with respect to Damages
resulting from Claims by persons not party to the Merger Agreement shall be
subject to the following terms and conditions:
(a) The Indemnified Parties will have the right (upon further notice
to the Indemnitor) to undertake the defense, compromise or settlement of
such Claim for the account of the Indemnitor, subject to the right of the
Indemnitor to participate in the defense of such Claim pursuant to the
terms of paragraph (b) of this Section 2.3 at any time prior to
settlement, compromise or final determination thereof.
(b) After delivery of an Indemnification Notice in respect of a
Claim and subject to paragraph (c) of this Section 2.3, the Indemnitor may
elect, by written notice to the Indemnified Party, to participate in the
defense thereof with counsel reasonably satisfactory to the Indemnified
Party. If the Indemnitor chooses to participate in the defense of any
claim, the Indemnified Party shall cooperate with all reasonable requests
of the Indemnitor and shall make available to the Indemnitor any books,
records or other documents within its control that are necessary or
appropriate for such defense.
(c) The Indemnitor shall not, without written consent of all
Indemnified Parties, settle or compromise any Claim or consent to entry of
any judgment which does not include as an unconditional term thereof the
release by the claimant or the plaintiff of all Indemnified Parties from
all liability arising from events which allegedly give rise to such Claim.
(d) Until such time as the amount of Damages incurred by the
Indemnified Party exceeds $250,000, all fees and expenses of counsel
selected by Indemnitor incurred in participating in the defense of such
Claim shall be borne solely by Indemnitor. From and
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after such time as the amount of Damages incurred by the Indemnified Party
exceeds $250,000, subject to paragraph (e) of this Section 2.3, the
reasonable fees and expenses of counsel to Indemnitor thereafter incurred,
together with the reasonable fees and expenses of counsel to Indemnitor
incurred by Indemnitor prior to such time as the Damages of the
Indemnified Party exceed $250,000, shall be considered additional Damages
for purposes of this Section 2.
(e) If the Indemnified Party desires not to defend any Claim or to
settle or compromise any Claim or consent to entry of any judgment with
respect to such Claim, the Indemnified Party shall provide written notice
(the "Proposed Settlement Notice") to the Indemnitor of such desire, which
Proposed Settlement Notice shall state the amount of Damages which the
Indemnified Party is prepared to incur as a result of such settlement,
compromise or entry of judgment (the "Proposed Damage Limit"). Indemnitor
shall have the right, by written notice to the Indemnified Party within
ten (10) days after receipt of the Proposed Settlement Notice, to assume
the defense of such Claim and to employ its own counsel in the defense of
such Claim; provided that upon the final determination of Damages with
respect to such Claim, any Damages (including counsel fees and expenses)
in excess of the Proposed Damage Limit shall be borne solely by Indemnitor
and shall not be considered Damages for purposes of making any
determinations pursuant to Section 2.5 as to the amount for which
Indemnitor may be responsible.
2.4 Limitation on Indemnification. Notwithstanding anything to the
contrary provided in the Merger Agreement, the obligations of Indemnitor under
this Agreement to indemnify any Indemnified Party with respect to any Claim
pursuant to Section 2.2 shall be of no force and forever barred unless the
Indemnified Party has given the Indemnitor notice of such claim prior to such
date which is eighteen (18) months after the consummation of the Merger, as the
case may be. In any event, the parties shall fully cooperate with each other and
their respective counsel in accordance with Section 2.3 in connection with any
such litigation, defense, settlement or other attempted resolution.
2.5 Limitation upon Indemnification Obligations. Indemnitor shall not be
required to indemnify any Indemnified Party until such time as the Damages in
the aggregate equal or exceed two hundred fifty thousand dollars ($250,000.00).
Notwithstanding anything herein to the contrary, no indemnification shall be
required by Indemnitor for any Damages in the aggregate in excess of $250,000
(i.e., Indemnitor's maximum liability for Damages under this Agreement shall not
exceed $250,000).
3. 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.
4. Failure to Indemnify. If indemnification or advances for expenses are
ordered to be paid by the Indemnitor pursuant to Section 3, Indemnified Parties
shall also be entitled to be paid
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for expenses (including reasonable attorneys' fees) incurred in connection with
the application for the court-ordered payments.
5. 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
Indemnitor, any Indemnitor or other entity.
6. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other right which
Indemnified Parties may have or may hereafter acquire under any statute,
agreement or otherwise.
7. Notices; Indemnified Parties' Obligations. Notices to the Indemnitor
shall be directed to TechForce Corporation, 0000 Xxx Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000-0000, Attn.: Xxxx Xxxxxxx (or such other address as the Indemnitor
shall designate in writing to Indemnified Parties). In addition, Indemnified
Parties shall give the Indemnitor such information and cooperation as it may
reasonably require and as shall be within Indemnified Parties' power.
8. 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.
9. 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.
10. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of New
York.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
INDEMNITOR:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
INDEMNIFIED PARTIES:
EQUANT N.V.
By:/s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Authorized Signatory
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EQUANT HOLDINGS U.S., INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Authorized Signatory
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EQUANT ACQUISITION CORP.
By:/s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Vice President
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