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SALE OF CERTAIN ASSETS OF
TECHTEAM CAPITAL GROUP, LLC
TO
NEWCO CONSULTANTS, LLC
APRIL 3, 2000
DOCUMENT TAB
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Asset Purchase Agreement...............................................................1
* Bill of Sale, Assignment and Assumption Agreement....................................2
Registration Rights Agreement for ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇...................................................3
Separation and Release Agreement for ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇...........................................4
Service and Re-Marketing Agreement.....................................................5
* Promissory Note for Fixed Assets.....................................................6
* Promissory Note for Motor Vehicle....................................................7
* Promissory Note for Loan Receivables--▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇..............................8
* Promissory Note for Loan Receivables--▇▇▇▇▇▇ ▇. ▇▇▇▇▇................................9
* Promissory Note for Loan Receivables--▇▇▇▇▇ ▇. ▇▇▇▇▇................................10
* Security Agreement for Fixed Assets.................................................11
* Certificate of Insurance for Fixed Assets naming Seller as Loss Payee...............12
* UCC Financing Statement for Fixed Assets............................................13
* Corporate Guaranty of National TechTeam, Inc........................................14
* Stock Pledge and Security Agreement --▇▇▇▇▇ ▇. ▇▇▇▇▇................................15
* UCC Financing Statement Executed by ▇▇▇▇▇ ▇. ▇▇▇▇▇..................................16
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DOCUMENT..............................................................................TAB
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* Letter from ▇▇▇▇▇ ▇▇▇▇▇ to ▇▇▇▇▇ ▇▇▇▇▇▇▇ authorizing delivery of stock
certificates representing ownership of 25,000 shares of common stock of National
Tech Team, Inc.
to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇...................................................................17
* Certificate of ▇▇▇▇▇▇'s Authorized Representative Relating to the Accuracy
of Representations and Warranties and Compliance with Covenants.......................18
* Letter dated April 4, 2000 from ▇. ▇▇▇▇▇▇ to ▇. ▇▇▇▇▇▇▇ re: lien
on 25,000 shares of National TechTeam, Inc............................................19
* Seller's Certificate of Good Standing...............................................20
* Written Consent of the Board of Directors of
TechTeam Capital Group, LLC...........................................................21
* Certificate of ▇▇▇▇▇'s Authorized Representative Relating to the Accuracy
of the Representations and Warranties and Compliance with Covenants...................22
* Buyer's Certificate Relating to the Articles of Organization, Operating,
Agreement, Adoption of Resolutions Approving the Transaction and
Incumbency of Persons Executing the Agreements........................................23
* Buyer's Certificate of Good Standing................................................24
* - The Registrant agrees to furnish a copy of omitted documents to the
Commission upon request.
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ASSET PURCHASE AGREEMENT
BY AND AMONG
TECHTEAM CAPITAL GROUP, LLC
NEWCO CONSULTANTS, LLC
AND
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
AS OF MARCH 31, 2000
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This ASSET PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of the 31st day of March, 2000, by and among NEWCO CONSULTANTS,
LLC, a Michigan limited liability company ("Buyer"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (all of whom are collectively referred to herein as
"Affiliates"), and TECHTEAM CAPITAL GROUP, LLC, a Michigan limited liability
company ("Seller").
RECITALS
WHEREAS, Seller is engaged in various business activities,
including the lease of computer and other equipment (collectively, the
"Business");
WHEREAS, upon the terms and subject to the conditions of this
Agreement, Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, certain assets owned by Seller and used in the operation of the Business,
as more specifically identified herein (the "Purchased Assets");
WHEREAS, the Affiliates are interested in the business and affairs
of Newco and in the transactions contemplated by this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
SALE AND PURCHASE OF ASSETS
1.1 Agreement of Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, at the Closing, the Seller shall sell, transfer,
assign, convey and deliver (or cause to be sold, transferred, conveyed, assigned
and delivered) to Buyer, and Buyer shall purchase, accept and acquire from
Seller, all of the right, title and interest of Seller in and to the Purchased
Assets. "Purchased Assets" shall mean the loan receivables and fixed assets that
are specifically set forth on Schedule 1.1 attached hereto, and the master
leases set forth on Schedule 10.1. Except as indicated on Schedule 3.3, the
Purchased Assets will be sold free and clear of all mortgages, deeds of trust,
liens, pledges, charges, security interests, contractual restrictions, claims or
encumbrances of any kind or character (collectively, "Encumbrances").
Notwithstanding the provisions of this Section 1.1, nothing in this Agreement
will constitute a transfer or an attempted transfer of any contract document or
agreement which is not capable of being transferred without the consent,
approval, waiver or novation of a third person or entity (including, without
limitation, a governmental authority), or with respect to which such transfer or
attempted transfer would constitute a breach thereof or a violation of any law,
other than those for which such consents, approvals, waivers or novations have
been obtained by the Seller prior to the Closing Date (such nontransferable
contract documents and agreements being collectively referred to herein as the
"Unassigned Contracts"). The Seller will not be obligated to transfer to the
Buyer any of its rights and obligations in and to any of the Unassigned
Contracts without first having obtained all consents, approvals, waivers and
novations necessary for such
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transfers under the terms of such Unassigned Contracts or applicable law, and
the failure to effect such transfer shall not constitute a breach of this
Agreement so long as the Seller uses its best efforts to obtain such consents,
approvals, waivers and/or novations following the Closing. Upon obtaining any
such consent, approval, waiver or novation necessary to transfer an Unassigned
Contract following the Closing, the Unassigned Contracts will, without further
action, be deemed to be transferred to the Buyer. To the extent that the
consents, approvals, waivers and novations referred to in this paragraph are not
obtained by the Seller, the Seller will, as to each Unassigned Contract, use its
best efforts after the Closing Date to provide to Buyer the benefits of such
Unassigned Contracts, cooperate in any lawful arrangement designed to provide
such benefits to the Buyer without incurring any obligation to any third party,
and enforce, at the request of the Buyer, at the cost of and for the account of
the Buyer, any rights of the Seller arising from any such Unassigned Contract
(including, without limitation, the right to elect to terminate in accordance
with the terms thereof upon the request of the Buyer).
1.2 Assumed Liabilities. On the terms and subject to the conditions
of this Agreement and in reliance upon the representations and warranties
contained herein, at the Closing, the Buyer and the Affiliates shall assume and
undertake to perform all of the liabilities and obligations of the Seller
specifically described on Schedule 1.2 (the "Assumed Liabilities"). Except for
the Assumed Liabilities, neither the Buyer nor the Affiliates shall assume and
the Seller shall retain and remain responsible for, any and all liabilities and
obligations of the Seller, including all liabilities and obligations with
respect to the Business (collectively, the "Retained Liabilities").
1.3 Purchase Price; Allocation.
(a) Purchase Price. In addition to
the assumption of the Assumed
Liabilities, as the full consideration to
be paid by the Buyer for the Purchased
Assets, the Buyer shall pay to the Seller
the purchase price (the "Purchase Price")
at the Closing as follows:
1. Delivery to Seller of the individual
promissory notes of (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
in the principal amount of Two Hundred
Fifty-Eight Thousand Two Hundred
Sixty-Four and 00/100 Dollars
($258,264.00); (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇ in the
principal amount of Four Hundred
Twenty-Three Thousand Eight Hundred Fifty
and 00/100 Dollars ($423,850.00); and
(iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ in the principal
amount of Four Thousand Five Hundred
Fifty-Six and 00/100 Dollars ($4,556.00)
(the "Loan Receivable Notes"), each
substantially in the form of Exhibit A
attached hereto.
2. Delivery to Seller of Buyer's Secured
Promissory Note (the "Fixed Assets Note")
in the amount of $28,098.90 substantially
in the form of Exhibit B attached hereto.
3. Delivery to Seller of the promissory note
of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in the principal
amount of Twenty-Four Thousand Three
Hundred Thirty-One and 53/100 Dollars
($24,331.53), substantially in the Form
of Exhibit C attached hereto (the "Motor
Vehicle Note").
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(b) Allocation. The allocation of the Purchase Price and the
Assumed Liabilities shall be as set forth on Schedule 1.3(B). Buyer and Seller
agree to use such allocation in preparing their respective Internal Revenue
Service Forms 8594 and all other reports to, and tax returns filed with, all
governmental entities (including the Internal Revenue Service).
1.4 Instrument of Conveyance and Transfer; Further Assurances. At
the Closing, the Seller shall deliver to the Buyer a Bill of Sale, Assignment
and Assumption Agreement substantially in the form of Exhibit D attached hereto
(the "Bill of Sale"), and such other instruments of assignment, conveyance and
transfer, as shall be necessary to vest in the Buyer good title to the Purchased
Assets in accordance herewith. The Seller further agrees that, from and after
the Closing, it will execute and deliver to the Buyer such additional
instruments and documents and take such further action as the Buyer may
reasonably request in order to more fully vest, record and/or perfect the
Buyer's title to, or interest in, the Purchased Assets.
ARTICLE 2
CLOSING
The transactions contemplated hereby shall take place at a closing
(the "Closing") at the offices of Butzel Long, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ at 3:00 p.m. local time on the 3rd day of April, 2000,
unless another date or place is agreed to in writing by the Seller and the
Buyer. The date on which the Closing actually occurs is referred to herein as
the "Closing Date". In no event shall the Closing occur later than June 30, 2000
(the "Closing Date Deadline").
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Organization; Good Standing; Qualifications. Seller is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Michigan. Seller is qualified as a foreign
limited liability company and is in good standing in each of the jurisdictions
where the nature of the Business requires such qualification.
3.2 Authority; Consent. The Seller has full power and authority to
carry on the Business as now conducted. Seller has full power and authority to
execute and deliver this Agreement and the other agreements, documents and
instruments contemplated hereby, to consummate the transactions contemplated
hereby and thereby, and to perform its obligations hereunder and thereunder.
Except as set forth on Schedule 3.2, the execution and delivery of this
Agreement and the other agreements, documents and instruments contemplated
hereby and thereby and the performance by the Seller of its obligations
hereunder and thereunder: (i) have been duly and validly authorized by all
necessary company action; and (ii) do not and will not conflict with or violate
the provisions of the articles of organization or operating agreement of the
Seller, violate any law or regulation or any decree of any court or governmental
body applicable to Seller or the Purchased Assets, or result in the imposition
of any Encumbrance upon any of the Purchased Assets.
3.3 Title to Purchased Assets. The Seller has good and valid title
to the Purchased Assets, free and clear of all Encumbrances, except those
described on Schedule 3.3.
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3.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 3, THE PURCHASED
ASSETS ARE SOLD TO BUYER "AS IS, WHERE IS" AND SELLER DISCLAIMS ANY AND ALL
WARRANTIES AND REPRESENTATIONS WITH REGARD TO THE PURCHASED ASSETS, THIS
AGREEMENT OR THE RELATED DOCUMENTS (WHETHER EXPRESS OR IMPLIED), INCLUDING
WITHOUT LIMITATION (a) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, AND (b) ANY WARRANTY OF QUALITY, FUNCTIONALITY,
OPERABILITY, USE OR PERFORMANCE OF THE PURCHASED ASSETS. UNDER NO CIRCUMSTANCES
AND UNDER NO LEGAL THEORY SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR RELATING TO THE
PURCHASED ASSETS, THIS AGREEMENT OR THE RELATED DOCUMENTS.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER AND AFFILIATES
4.1 Organization; Good Standing; Qualifications. The Buyer is a
newly-organized limited liability company duly organized, validly existing and
in good standing under the laws of Michigan. The Buyer is qualified and is in
good standing in each of the jurisdictions where the nature of its business and
assets so require.
4.2 Authority; Consent. The Buyer has full power and authority to
carry on its business as now conducted. The Buyer has full power and authority
to execute and deliver this Agreement and the other agreements, documents and
instruments contemplated hereby, to consummate the transactions contemplated
hereby and thereby, and to perform its obligations hereunder and thereunder.
Except as set forth on Schedule 4.2, the execution and delivery of this
Agreement and the other agreements, documents and instruments contemplated
hereby and thereby and the performance by the Buyer of its obligations hereunder
and thereunder: (i) have been duly and validly authorized by all necessary
action; and (ii) do not and will not conflict with or violate the provisions of
the articles of organization or operating agreement of the Buyer, violate any
law or regulation or any decree of any court or governmental body applicable to
Buyer, or require the consent or authorization of any third party.
4.3 Ability to Perform. To the best of its knowledge, the Buyer
currently has available sufficient funding to pay the Purchase Price and to
enable the Buyer to consummate the other transactions contemplated by this
Agreement.
4.4 Buyer's Knowledge of Business. Buyer and the Affiliates
acknowledge and agree that they are highly familiar with the details of the
Business and the Purchased Assets by virtue of the fact that the Affiliates have
conducted the Business since its inception. Buyer and the Affiliates are relying
exclusively on their knowledge and understanding of the Business and the
Purchased Assets in evaluating whether to proceed with the transactions
contemplated by this Agreement and acknowledge that Seller has made no
representations, oral, written or otherwise, as to the condition or value of the
Purchased Assets or of the Business, except as set forth in this Agreement.
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ARTICLE 5
PRE-CLOSING COVENANTS OF THE SELLER
The Seller hereby covenants and agrees that from and after the date
hereof until the Closing:
5.1 Access to Purchased Assets. The Seller shall afford to the
Buyer, its attorneys, accountants, and such other representatives of the Buyer
as the Buyer shall designate to the Seller, free and full access at all
reasonable times, and upon reasonable prior notice, to the Purchased Assets, in
order that the Buyer may have full opportunity to make such investigations and
inspections as it shall reasonably desire of the Purchased Assets.
5.2 Maintenance of Purchased Assets. At all times before the
Closing, the Seller shall maintain the Purchased Assets in accordance with past
practices and Seller shall not take any actions outside the ordinary course of
operations which would adversely effect the operating condition of the Purchased
Assets.
5.3 Closing Conditions. The Seller shall use all reasonable efforts
to satisfy promptly the conditions to Closing set forth in Article 7 hereof
required herein to be satisfied by the Seller.
ARTICLE 6
PRE-CLOSING COVENANTS OF THE BUYER
The Buyer and the Affiliates hereby covenant and agree that,
from and after the date hereof until the Closing they shall use all reasonable
efforts to satisfy promptly the conditions to Closing set forth in Article 8
hereof required herein to be satisfied by them.
ARTICLE 7
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
The obligations of the Buyer and the Affiliates under this
Agreement at the Closing and the consummation by them of the transactions
contemplated hereby are subject to the satisfaction or fulfillment, prior to or
at the Closing, of each of the following conditions, unless waived in writing by
the Buyer:
7.1 Representations and Warranties. The representations and
warranties made by the Seller in this Agreement shall be true and correct in all
material respects at and as of the date of this Agreement and at and as of the
Closing Date as though such representations and warranties were made at and as
of such times.
7.2 Performance of Obligations of the Seller. The Seller shall have
performed and complied with all of its covenants, agreements, obligations and
restrictions pursuant to this Agreement required to be performed or complied
with by it prior to or at the Closing.
7.3 Closing Certificate. The Seller shall have delivered a
certificate, signed by its duly authorized representative and dated the Closing
Date, certifying to the satisfaction of the conditions set forth in Sections 7.1
and 7.2 hereof.
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7.4 Supporting Documents. The Buyer shall have received from the
Seller the following:
(a) Certificate of the Secretary of State of the State of
Michigan dated as of a recent date as to the due organization and good standing
of the Seller; and
(b) Such additional supporting documents and other information
as the Buyer or its counsel may reasonably request.
7.5 Bill of Sale, Assignment and Assumption Agreement, Etc. The
Buyer shall have received from the Seller a duly executed Bill of Sale, and all
necessary deeds, assignments, documents and instruments to effect the transfers,
conveyances and assignments to the Buyer referred to in Article 1 hereof, and
the Seller shall have taken such action as shall be necessary to put the Buyer
in actual possession and exclusive control of each of the Purchased Assets, as
described in Section 1.4.
7.6 No Litigation. No action, suit or other proceeding shall be
pending or threatened before any court, tribunal or governmental authority
seeking or threatening to restrain or prohibit the consummation of the
transactions contemplated by this Agreement, or seeking to obtain damages in
respect thereof, or involving a claim that consummation thereof would result in
a violation of any law, rule, decree or regulation of any governmental authority
having appropriate jurisdiction, and no order, decree or ruling of any
governmental authority or court shall have been entered challenging the
legality, validity or propriety of this Agreement or the transactions
contemplated hereby or prohibiting, restraining or otherwise preventing the
consummation of the transactions contemplated hereby.
7.7 Service and Remarketing Agreement. Seller shall have delivered
to Buyer a copy of a Service and Remarketing Agreement, substantially in the
form of Exhibit E attached hereto, duly executed by a duly-authorized
representative of Seller.
7.8 Corporate Guarantee. Buyer shall have received the corporate
guarantee of Seller's parent company, National TechTeam, Inc., substantially in
the form of Exhibit F attached hereto, guaranteeing the Seller's obligations
under the Service and Remarketing Agreement.
7.9 Registration Rights Agreement. National TechTeam, Inc. shall
have delivered to each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇ a Registration Rights Agreement, substantially in the form of
Exhibit G attached hereto, duly executed by a duly authorized representative of
Seller
7.10 Existing Promissory Notes. Seller shall have delivered to
Buyer the originals of the notes dated November 30, 1998 given by the following
persons in the following Amounts, to be cancelled at closing:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $4,696.69
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $266,251.23
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Capricorn Toys, Inc. $85,585.52
▇▇▇▇▇ ▇. ▇▇▇▇▇ $412,349.86
ARTICLE 8
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLER
The obligations of the Seller under this Agreement at the Closing
and the consummation by the Seller of the transactions contemplated hereby are
subject to the satisfaction or fulfillment by the Buyer and the Affiliates,
prior to or at the Closing, of each of the following conditions, unless waived
in writing by the Seller:
8.1 Representations and Warranties. The representations and
warranties made by the Buyer and the Affiliates in this Agreement shall be true
and correct in all material respects at and as of the date of this Agreement and
at and as of the Closing Date as though such representations and warranties were
made at and as of such times.
8.2 Performance of Obligations of the Buyer. The Buyer and the
Affiliates shall have performed and complied with all its covenants, agreements,
obligations and restrictions pursuant to this Agreement required to be performed
or complied with prior to or at the Closing.
8.3 Closing Certificate. The Buyer and the Affiliates shall have
delivered a certificate, signed by the Buyer's manager or by its members and by
the Affiliates, respectively, dated the Closing Date, certifying to the
satisfaction of the conditions set forth in Sections 8.1 and 8.2 hereto.
8.4 Payment of Purchase Price. The Buyer shall have tendered to the
Seller payment of the Purchase Price.
8.5 Supporting Documents. The Seller shall have received the
following:
(a) A certificate of the Secretary of State of Michigan, dated
as of a recent date as to the due organization and good standing of the Buyer;
(b) A certificate of the manager or the members of the Buyer
dated the Closing Date, and certifying (i) that attached thereto are true,
complete and correct copies of the resolutions duly adopted by the members of
the Buyer as in effect on the date of such certification approving the
transactions contemplated hereby and authorizing the execution, delivery and
performance by the Buyer of this Agreement and the Service and Remarketing
Agreement, and (ii) as to the incumbency and signatures of certain officers,
managers or members of the Buyer executing any instrument or other document
delivered in connection with such transactions; and
(c) Copies of all authorizations and consents referred to in
Section 4.2 hereof.
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8.6 No Litigation. No action, suit or other proceeding shall be
pending or threatened before any court, tribunal or governmental authority
seeking or threatening to restrain or prohibit the consummation of the
transactions contemplated by this Agreement, or seeking to obtain damages in
respect thereof, or involving a claim that consummation thereof would result in
a violation of any law, rule, decree or regulation of any governmental authority
having appropriate jurisdiction, and no order, decree or ruling of any
governmental authority or court shall have been entered challenging the
legality, validity or propriety of this Agreement or the transactions
contemplated hereby or prohibiting, restraining or otherwise preventing the
consummation of the transactions contemplated hereby.
8.7 Service and Remarketing Agreement. Buyer shall have delivered
to Seller a copy of a Service and Remarketing Agreement, substantially in the
form of Exhibit E attached hereto, duly executed by a duly-authorized
representative of Buyer.
8.8 Security Agreement. Buyer shall have delivered to Seller a
Security Agreement, substantially the form of Exhibit H attached hereto,
granting Seller a security interest in certain of the Purchased Assets, duly
executed by a duly authorized representative of Buyer.
8.9 Stock Pledge. ▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have executed and delivered
to Seller a Pledge and Security Agreement, substantially in the form of Exhibit
I attached hereto, granting Seller a security interest in certain of Sach's
shares of National TechTeam, Inc.
8.10 Separation and Release Agreement. ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have executed and delivered
to Seller a Separation and Release Agreement, substantially in the of Exhibit J
attached hereto.
8.11 Registration Rights Agreement. ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have each executed and
delivered to Seller a Registration Rights Agreement, substantially in the form
of Exhibit G attached hereto.
ARTICLE 9
COSTS; RISK OF LOSS; TRANSFER TAXES; PRORATION OF CHARGES
9.1 Costs. Each party shall bear its own costs related to the
negotiation and closing of this transaction.
9.2 Certain Taxes and Fees. All sales, transfer, documentary,
stamp, recording and other similar taxes and/or fees and Taxes which may be due
or payable in connection with the sale of the Purchased Assets pursuant hereto
shall be paid by the party responsible under applicable law.
9.3 Proration of Certain Charges. The following Taxes, charges and
payments ("Charges") shall be prorated on a per diem basis and apportioned
between the Seller and the Buyer as of the date of the Closing: personal
property, use, intangible taxes, license fees, and general assessments imposed
with respect to the Purchased Assets. The Seller shall be liable for that
portion of the Charges relating to, or arising in respect of, periods on or
prior to the Closing Date and the Buyer
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shall be liable for that portion of the Charges relating to, or arising in
respect of, any period after the Closing Date.
ARTICLE 10
ASSIGNMENT OF MASTER LEASES
10.1 Assignment of Master Leases. At Closing, Seller shall assign
to Buyer or ▇▇▇▇▇'s designee (the "Designee"), the master leases set forth of
Schedule 10.1 (the "Assigned Master Leases"). Specifically excluded from the
master leases that Seller may assign to Buyer are the master leases with
Consumers Power and its affiliates.
10.2 Assumption of Master Leases. Upon assignment of the Master
Leases to Designee or Buyer, Designee or Buyer, as the case may be, shall assume
all of Seller's obligations under the Assigned Master Leases. Seller and Buyer
each agree to execute an Assignment and Assumption Agreement for the purposes of
(i) assigning Seller's rights under the Assigned Master Leases to Buyer and (ii)
Buyer assuming all of Seller's obligations and liabilities under the Assigned
Master Leases.
ARTICLE 11
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
11.1 Survival of Representations and Warranties. The
representations and warranties of the Seller and the Buyer contained in this
Agreement, including those contained in any Schedule or certificate delivered
hereunder or in connection herewith, shall survive the Closing.
11.2 Agreement to Indemnify by the Seller. Subject to the terms and
conditions of Sections 11.4 and 11.5 hereof, the Seller agrees to indemnify and
save the Buyer, the Affiliates, and each of their respective affiliates,
members, officers, directors, employees, successors and assigns (each, a "Buyer
Indemnitee") harmless from and against, for and in respect of, any and all
demands, judgments, injuries, penalties, fines, damages, losses, obligations,
liabilities, claims, actions or causes of action, encumbrances, costs, expenses
(including, without limitation, reasonable attorneys' fees, consultants' fees
and expert witness fees), suffered, sustained, incurred or required to be paid
by any Buyer Indemnitee (collectively, "Buyer's Damages") arising out of, based
upon, in connection with or as a result of:
(a) the untruth, inaccuracy or breach of any representation
and warranty of the Seller contained in or made pursuant to this Agreement,
including in any Schedule or certificate delivered hereunder or in connection
herewith;
(b) the breach or nonfulfillment of any covenant of the Seller
contained in this Agreement; or
(c) the assertion against any Buyer Indemnitee or any of the
Purchased Assets of any liability or obligation arising out of or based upon any
of the Retained Liabilities.
11.3 Agreement to Indemnify by the Buyer and the Affiliates.
Subject to the terms and conditions of Sections 11.4 and 11.5 hereof, the Buyer
and the Affiliates hereby agree to indemnify and
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save the Seller, its affiliates and their respective shareholders, officers,
directors, employees, successors and assigns (each, a "Seller Indemnitee")
harmless from and against, for and in respect of, any and all demands,
judgments, injuries, penalties, damages, losses, obligations, liabilities,
claims, actions or causes of action, encumbrances, costs and expenses
(including, without limitation, reasonable attorneys' fees and expert witness
fees) suffered, sustained, incurred or required to be paid by any Seller
Indemnitee arising out of, based upon, in connection with or as a result of:
(a) the untruth, inaccuracy or breach of any representation
and warranty of the Buyer or the Affiliates contained in or made pursuant to
this Agreement, including in any Schedule or certificate delivered hereunder or
in connection herewith;
(b) the breach or nonfulfillment of any covenant of the Buyer
or the Affiliates contained in this Agreement;
(c) the assertion against any Seller Indemnitee of any of the
Assumed Liabilities; or
(d) the assertion against any Seller Indemnitee of any claim
by any customer of Buyer arising out of or related to any goods delivered by
Buyer after the Closing Date.
11.4 Claims for Indemnification; Limitations. No claim for
indemnification with respect to a breach of a representation and warranty shall
be made under this Agreement after the Survival Date unless prior to the
Survival Date the Buyer Indemnitee or the Seller Indemnitee, as the case may be,
shall have given the Seller or the Buyer, as the case may be, written notice of
such claim for indemnification. Neither the aggregate liability of the Buyer for
all such claims under Section 10.3 (other than claims involving fraud or
intentional misrepresentation), on the one hand, nor the aggregate liability of
the Seller for all such claims under Section 11.2 (other than claims involving
fraud or intentional misrepresentations), on the other hand, shall exceed the
Purchase Price. The amount of any claim by the Buyer Indemnitee or the Seller
Indemnitee for indemnity hereunder shall be reduced to reflect any actual tax
savings received by the Indemnitee (as defined below) within three (3) years
from the Closing Date that result from the liability that gave rise to such
indemnity. The amount of any claim by the Buyers or the Sellers for indemnity
hereunder shall be reduced to reflect any insurance proceeds recoverable by and
paid to the Indemnitee relating to such claim, provided that the foregoing
reduction shall not be applied if to do so would excuse any insurer from any
obligation to cover any loss.
11.5 Claims.
(a) Any claim for indemnity under Section 11.2 or 11.3 shall
be made by written notice from the party seeking to be indemnified (the
"Indemnitee") to the party from which indemnification is sought (the
"Indemnifying Party") specifying in reasonable detail the basis of the claim.
(b) When an Indemnitee seeking indemnification under Section
11.2 or 11.3 receives notice of any claims made by third parties ("Third Party
Claims") which is to be the basis for a claim for indemnification hereunder, the
Indemnitee shall give written notice within a reasonable
10
14
period thereof to the Indemnifying Party reasonably indicating the nature of
such claims and the basis thereof. Upon notice from the Indemnitee, the
Indemnifying Party may, but shall not be required to, assume the defense of any
such Third Party Claim, including its compromise or settlement, and the
Indemnifying Party shall pay all reasonable costs and expenses thereof and shall
be fully responsible for the outcome thereof, provided, however, that (i) the
Indemnifying Party shall not settle any such claim without the Indemnitee's
prior written consent (which consent shall not be unreasonably withheld) unless
the only remedy for such claim is monetary damages which are paid in full by the
Indemnifying Party, and (ii) the Indemnifying Party shall not, without the
written consent of the Indemnitee, settle or compromise any claim which does not
include as an unconditional term thereof the giving by the claimant or the
plaintiff to Indemnitee, a release from all liability in respect to such claim.
In connection with any claim involving any remedy other than monetary damages,
the Indemnitee shall have the right to be kept informed and be consulted in
connection with the resolution of such claim. The Indemnifying Party shall give
notice to the Indemnitee as to its intention to assume the defense of any such
Third Party Claim within twenty (20) days after the date of receipt of the
Indemnitee's notice in respect of such Third Party Claim. If an Indemnifying
Party does not give notice to the Indemnitee of its assumption of the defense of
the Third Party Claim within twenty (20) days after the Indemnitee's notice is
given, the Indemnifying Party shall be deemed to have waived its rights to
control the defense thereof. If the Indemnitee assumes the defense of any Third
Party Claim because of the failure of the Indemnifying Party to do so in
accordance with this Section 10.5, the Indemnifying Party shall pay all
reasonable costs and expenses of such defense and shall be fully responsible for
the outcome thereof. The Indemnifying Party shall have no liability with respect
to any compromise or settlement thereof effected without its prior written
consent, which consent shall not be unreasonably withheld.
(c) Both the Indemnitee and the Indemnifying Party shall
cooperate fully with one another in connection with the defense, compromise or
settlement of any such claim, proceeding or action, including, without
limitation, by making available to the other all pertinent information and
witnesses within its control.
11.6 Effectiveness. The provisions of this Article 11 shall be
effective upon consummation of the Closing, and prior to the Closing, shall
have no force and effect.
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ARTICLE 11
MISCELLANEOUS
12.1 Publicity. Except as required by law, all notices to third
parties concerning the sale of the Purchased Assets and the other transactions
contemplated by this Agreement prior to the Closing shall be subject to the
prior written consent of the Seller, which shall not be unreasonably withheld
but shall be as directed by ▇▇▇▇▇▇. Buyer shall cooperate with Seller to provide
a written announcement of the transfer of assets hereunder to current lessees.
12.2 Notices. All notices, requests, communications, invoices and
payments required or permitted to be given under this Agreement shall be made in
writing and shall be deemed duly given: (i) on the day when it is delivered
personally or sent via telefax (with a copy of the telefax mailed that day),
(ii) on the next day after being deposited with an overnight, expedited carrier,
postage prepaid, requiring a signed acknowledgment of receipt, or (iii) five (5)
days after it is sent registered or certified mail, return receipt requested, to
the other party at the following addresses and numbers:
If to Buyer or the Affililates: If to Seller:
Newco Consultants, LLC National TechTeam, Inc.
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇. ▇. ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, , ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change the address to which any communication, report or
payment is to be directed to it by giving written notice to the other in the
manner provided in this Section.
12.3 Assignment. This Agreement may not be assigned by any party
hereto without the prior written consent of the other parties.
12.4 Severability. The parties agree that if a competent authority
shall rule any provision or provisions of this Agreement invalid, unlawful or
unenforceable in whole or in part for any reason whatsoever, this Agreement
shall remain binding between the parties and in full force and effect except for
such invalidated provision or part thereof. Upon any such determination that a
provision of this Agreement is invalid, unlawful or enforceable in whole or in
part, the competent authority making such determination shall have the power to
modify such invalidated provision so as to effect the original intent of the
parties as closely as possible in an appropriate manner.
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12.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan, excluding any
conflicts of laws provisions.
12.6 Entire Agreement; Amendment. This Agreement (including all
Exhibits, Schedules and other documents referenced herein and/or attached
hereto, which are hereby incorporated herein by reference) sets forth the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes all prior agreements, arrangements and understandings
among the parties relating to the subject matter hereof. This Agreement may be
amended, superseded or canceled, and any of the terms hereof may be waived, only
by written instrument specifically referring to this Agreement and specifically
stating that it amends, supersedes or cancels this Agreement or waives any of
its terms, executed by all parties (or, in the case of a waiver, by the party
waiving compliance).
12.7 Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which shall constitute but one
agreement.
12.8 Headings. The Section headings contained in this Agreement are
for convenience and reference only and shall not in any way affect the meaning
or interpretation of this Agreement.
12.9 Waiver. The failure of any party at any time or times to
require performance of any provision of this Agreement shall in no manner affect
such party's right at a later time to enforce the same. No waiver by any party
of any breach of any provision of this Agreement in any one or more instances
shall be deemed to be or construed as a further or continuing waiver of such
breach, or a waiver of any breach of any other provisions.
12.10 Remedies. The rights and remedies of the parties provided in
this Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
[SIGNATURES APPEAR ON FOLLOWING PAGE.]
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17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the day and year
first above written.
BUYER:
NEWCO CONSULTANTS, LLC
ATTEST:
By: By:
-------------------------------- ----------------------------
Printed Name: Printed Name:
---------------------- ------------------
Title: Title:
---------------------------- -------------------------
SELLER:
TECHTEAM CAPITAL GROUP, LLC
ATTEST:
By: By:
-------------------------------- ----------------------------
Printed Name: Printed Name:
---------------------- ------------------
Title: Title:
---------------------------- -------------------------
ATTEST: AFFILIATES:
By:
-------------------------------- ----------------------------
Printed name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title:
-----------------------------
By:
------------------------------- ----------------------------
Printed name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Title:
-----------------------------
By:
------------------------------- ----------------------------
Printed name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Title:
-----------------------------
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SCHEDULE 1.1
PURCHASED ASSETS
The Purchased Assets shall include the items listed on this page, the 8
page(s) attached hereto and on Schedule 10.1.
Loan Receivables Assigned to Buyer
1. Note given by ▇▇▇▇▇ ▇. ▇▇▇▇▇ dated November 30, 1998 in the
principal amount of $412,349.86
2. Note given by Capricorn Toys dated November 30, 1998 in the
principal amount of $85,585.52.
3. Note given by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ dated November 30, 1998 in the
principal amount of $266,251.23.
4. Note given by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ dated November 30, 1998 in the
principal amount of $4,696.69.
The Purchased Assets shall not include any assets or property of the
Seller other than those items specifically listed on Schedule 10.1, this page
and on the attached 8 page(s). By way of example and not as an exhaustive list,
Buyer shall not acquire any of Seller's (i) portfolio of master leases except
for the Assigned Master Leases; (ii) intellectual property rights, including,
but not limited to, the name "TechTeam Capital Group", and (iii) cash and
accounts receivable of Seller.
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19
SCHEDULE 1.2
ASSUMED LIABILITIES
1. All of Seller's obligations and liabilities under that certain Office
Lease between Seller and Great Lakes REIT, L.P. made as of the 30th
day of July, 1999
2. All of Seller's obligations and liabilities under the Assigned Master
Leases after the date of the assignment except for the obligation to
fund the equity portion (up to $200,000) of any Schedules that have
been previously written in the name of Seller and have not been
funded, sold, assigned, transferred or otherwise disposed of as of
the date of Closing. ▇▇▇▇▇ agrees to use its best efforts to fund,
sell, assign, transfer or otherwise dispose of the obligation to fund
the Schedules referred to above.
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20
SCHEDULE 1.3(B)
ALLOCATION
[TO BE AGREED UPON BY THE PARTIES POST CLOSING]
17
21
SCHEDULE 3.3
ENCUMBRANCES ON PURCHASED ASSETS
18
22
SCHEDULE 4.2
BUYER CONSENTS, CONFLICTS AND VIOLATIONS
NONE
19
23
SCHEDULE 10.1
MASTER LEASES
20
24
EXHIBIT A
FORM OF LOAN RECEIVABLES
PROMISSORY NOTE
21
25
EXHIBIT B
FORM OF SECURED ASSET PURCHASE
PROMISSORY NOTE
22
26
EXHIBIT C
FORM OF PROMISSORY NOTE FOR MOTOR VEHICLE
23
27
EXHIBIT D
FORM OF BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
24
28
EXHIBIT E
FORM OF SERVICE AND REMARKETING AGREEMENT
25
29
EXHIBIT F
FORM OF CORPORATE GUARANTEE
26
30
EXHIBIT G
FORM OF REGISTRATION RIGHTS AGREEMENT
27
31
EXHIBIT H
FORM OF SECURITY AGREEMENT
28
32
EXHIBIT I
FORM OF STOCK PLEDGE AND
SECURITY AGREEMENT
29
33
EXHIBIT J
FORM OF SEPARATION AND RELEASE AGREEMENT
30
34
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
March 31, 2000, by and among National TechTeam, Inc., a Delaware corporation
(the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (each individually a "Shareholder" and collectively the
"Shareholders").
WHEREAS, the Company and the Shareholders are parties to a certain
Separation and Release Agreement of even date herewith (the "Separation
Agreement"), pursuant to which the Company has agreed to provide the
registration rights set forth in this Agreement. Unless otherwise provided in
this Agreement, capitalized terms used herein shall have the meanings set forth
in paragraph 1 hereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the meanings ascribed to them below:
(a) "Business Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday that is not a day on which banking institutions in the City of Detroit,
Michigan, are authorized by law, regulation or executive order to close.
(b) "Common Stock" means the common stock, par value $0.01 per share,
of the Company.
(c) "Demand Registration Statement" shall have the meaning set forth in
Section 2.
(d) "Contingent Shares" means the shares of Common Stock issued
pursuant to the Separation Agreement.
(e) "Prospectus" has the meaning set forth in Section 5.
(f) "Piggyback Registration Statement" has the meaning set forth in
Section 5.
(g) "Person" means any individual, corporation, partnership, limited
partnership, limited liability company, or other business entity.
(h) "Registrable Securities" means (x) the Contingent Shares and (y)
any securities issued or issuable in respect of or in exchange for any of the
Contingent Shares by way of a stock dividend or stock split or in connection
with a combination of the Contingent Shares, recapitalization, reclassification,
merger, consolidation, or exchange
35
offer. For purposes of this Agreement, a Registrable Security ceases to
constitute a Registrable Security (i) when such Registrable Security shall have
been effectively registered under the Securities Act and disposed of in a public
market transaction pursuant to a Registration Statement, (ii) when such
Registrable Security shall have been sold pursuant to Rule 144 (or any successor
provision) under the Securities Act, (iii) when such Registrable Security shall
have been otherwise transferred and a new certificate for such Registrable
Security not bearing a legend restricting further transfer shall have been
delivered by the Company following the Company's receipt of an opinion of
counsel reasonably satisfactory to it that the issuance and delivery of such a
certificate is legal and proper under this Agreement and applicable law, (iv)
with respect to a particular Shareholder, on the date on which all of that
Shareholder's remaining Registrable Securities could be sold in a single
transaction in compliance with Rule 144 under the Securities Act, or (v) when
such Registrable Security shall have ceased to be outstanding.
(j) "Registration Statement" means a Piggyback Registration Statement
or a Demand Registration Statement.
(k) " Representative" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
(l) "Securities Act" means the Securities Act of 1933, as amended.
(m) "Termination Date" means the first date on which no Registrable
Securities are outstanding.
(n) Other terms shall have the meaning ascribed to them in the recitals
and other sections of this Agreement.
2. DEMAND REGISTRATION.
a) Demand. Upon repayment of all indebtedness owed to the Company by
all of the Shareholders or any affiliates of the Shareholders, the Shareholders
shall have the right to require the Company to file one registration statement
(the "Demand Registration Statement") with the Securities and Exchange
Commission under the Securities Act, covering the sale of not less than 50,000
and not more than 350,000 shares of Registrable Securities. The right of the
Shareholders to require the Company to file a Demand Registration Statement
shall be exercised on behalf of the Shareholders by the Representative giving
written notice to the Company indicating the Shareholders who wish to have
Registrable Securities included in the Demand Registration and the amount of
Registrable Securities to be included for each such Shareholder. Upon receipt of
such notice the Company will follow the procedures contained in Sections 5 and
6, provided that, in any event, the Demand Registration Statement shall be filed
with the Securities and Exchange Commission within 60 days after the Company
shall have received such notice from the Representative or as soon thereafter as
practicable. Subject to Section 3(c) below, all of the Shareholders shall be
entitled to participate in the Registration;
2
36
provided, however, that the aggregate number of shares to be registered shall
not exceed 350,000.
(b) Number of Shares. In the event that the Shareholders have sold
Registrable Securities pursuant to a Piggyback Registration Statement prior to
the exercise of the right to a Demand Registration, the maximum amount of
Registrable Securities shares that may be sold pursuant to a Demand Registration
will be reduced by the amount of Registrable Securities sold pursuant to a
Piggyback Registration Statement.
3. PIGGYBACK REGISTRATIONS.
(a) Notice. Whenever the Company proposes to register any of its Common
Stock under the Securities Act for sale in an underwritten public offering,
other than pursuant to a registration on Form S-8 or Form S-4, or any other form
which in the future may be approved by the SEC in lieu of such forms for the
same purposes (a "Piggyback Registration"), the Company will give prompt written
notice to all holders of Registrable Securities of its intention to effect such
a registration and will, subject to Sections 3(c) and 3(d), include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice.
(b) Priority in Primary Registrations. If a Piggyback Registration is
an underwritten offering on behalf of the Company, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability of the
offering, the Company will include securities in such registration in the
following order of priority: (i) first, the securities the Company proposes to
sell, and (ii) second, the Registrable Securities requested to be included in
such registration by the Shareholders and all Common Stock requested to be
included in such registration by other holders of Common Stock having
registration rights (the "Other Common Stock"), pro-rata based on the respective
number of shares of Common Stock held by each Shareholder and other holder of
Common Stock.
(c) Priority in Secondary Registrations. If a Piggyback Registration is
an underwritten secondary offering on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
securities in such registration in the following order of priority: (i) first,
the Registrable Securities requested to be included in such registration by the
Shareholders requesting such registration, (ii) second, all Other Common Stock
requested to be included in such registration by other holders of Common Stock
having registration rights (except for such Common Stock included in the
immediately preceding clause (i)), pro-rata based on the respective number of
shares of Common Stock held by each
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37
Shareholder and other holders of Common Stock, and (iii) third, additional
securities of the Company requested to be included in such registration.
4. Holdback Agreements. Each holder of Registrable Securities agrees not
to effect any public sale or distribution (including sales pursuant to Rule144)
of equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the 90-day period beginning on the effective date of any underwritten
Piggyback Registration in which Registrable Securities are included (except as
part of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
5. Registration Procedures.
(a) Company Procedures.
(i) Whenever this Agreement requires, or the holders of
Registrable Securities have requested (as permitted hereunder), that any
Registrable Securities be registered pursuant to this Agreement, the Company
will use all reasonable efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will, as expeditiously as possible,
subject to the requirement set forth in Section 2(a) of the Company filing a
Demand Registration Statement within 60 days or as soon thereafter as
practicable:
(A) prepare and file with the Securities and Exchange
Commission a Registration Statement with respect to such
Registrable Securities and use all reasonable efforts to cause
such registration statement to become effective as soon as
practicable thereafter;
(B) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection
therewith (the "Prospectus") as may be necessary to keep such
Registration Statement effective for a period of not less than
ninety (90) days (plus, in the case of the Demand
Registration, any extension period required pursuant to
Section 6(b) plus any period during which the Shareholders are
unable to sell Registrable Securities due to an event
described in Section 5(a)(i)(F)) and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during such period;
(C) furnish each seller of Registrable Securities
such number of copies of such Registration Statement, each
amendment and supplement thereto, the Prospectus included in
such Registration Statement (including each preliminary
Prospectus) and such other documents as such seller may
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38
reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such seller;
(D) use all reasonable efforts to register and
qualify such Registrable Securities under the securities or
blue sky laws of such states and the District of Columbia as
any seller of Registrable Securities reasonably requests and
do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the
disposition in such states and the District of Columbia of the
Registrable Securities owned by such seller (provided that the
Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this subparagraph, (ii) subject
itself to taxation in any such jurisdiction or (iii) consent
to general service of process in any such jurisdiction);
(E) notify each seller of such Registrable Securities
of the happening of any event of which the Company becomes
aware, as a result of which the Prospectus included in such
Registration Statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any
such seller, as promptly as is practicable, the Company will
prepare a supplement or amendment to such Prospectus so that,
as thereafter delivered to the purchasers of such Registrable
Securities, such Prospectus will not contain an untrue
statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(F) notify each seller of any securities covered by
such Registration Statement (1) when such Registration
Statement, or any post-effective amendment to such
Registration Statement, shall have become effective, or any
amendment of or supplement to the Prospectus used in
connection therewith shall have been filed, (2) of any request
by the Securities and Exchange Commission to amend such
Registration Statement or to amend or supplement such
Prospectus or for additional information, (3) of the issuance
by the Securities and Exchange Commission of any stop order
suspending the effectiveness of such Registration Statement or
of any order preventing or suspending the use of any
preliminary prospectus, (4) of the suspension of the
qualification of such securities for offering or sale in any
jurisdiction, or of the institution of any proceedings for any
of such purposes, (5) of the happening of any event that makes
any statement made in such Registration Statement, any then
effective Prospectus or any other document incorporated
therein by reference untrue or that requires the making of any
changes in such Registration Statement, Prospectus or any
document incorporated therein by reference in order that such
documents not contain any untrue statement of a material fact
or omit to state any material fact required to be
5
39
stated therein or necessary to make the statements therein not
misleading, and (6) of the Company's determination that a
further post-effective amendment to such Registration
Statement would be appropriate;
(G) use reasonable efforts to cause all such
Registrable Securities to be listed on the NASD automated
quotation system;
(H) otherwise use all reasonable efforts to comply
with all applicable rules and regulations of the Securities
and Exchange Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months
beginning with the first day of the Company's first full
calendar quarter after the effective date of the Registration
Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder; and
(I) in the event of the issuance of any stop order
suspending the effectiveness of a Registration Statement, or
of any order suspending or preventing the use of any related
Prospectus or suspending the qualification of any Common Stock
included in such Registration Statement for sale in any
jurisdiction, the Company will use all reasonable efforts
promptly to obtain the withdrawal of such order.
(b) Shareholder Procedures.
(i) In connection with any Registration Statement, the Company
may require each Shareholder to furnish to the Company such information
regarding such Shareholder and his or her proposed distribution of
Registrable Securities, to the extent necessary to comply with the
Securities Act, as the Company may from time to time reasonably request
in writing.
(ii) Each Shareholder agrees to cooperate and timely provide
all necessary information to the Company in all reasonable respects in
connection with the preparation and filing of each Registration
Statement and any amendment thereof, any Prospectus relating thereto
and any Prospectus supplement relating thereto with respect to the
offer and sale of Registrable Securities of such Shareholder.
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6. Demand Registration Selling Restrictions. The following provisions
shall apply to the Demand Registration:
(a) Notice to Company. The Representative agrees to notify the Company
at least two (2) Business Days prior to any disposition of Registrable
Securities pursuant to the Demand Registration Statement of a Shareholder's
intent to dispose of such Registrable Securities. Such notice shall be in
writing, by facsimile or by a telephone conversation with either the Company's
Chief Financial Officer, General Counsel or Director of Investor Relations, at
the address, facsimile number or the phone number, as the case may be, of the
Company, all as set forth in Section 11 below. The Company will exert reasonable
efforts to respond to such notice by the next Business Day, but in any event,
the Company shall respond no later than the second Business Day following the
date of receipt. Such response shall consist of one of the following:
(i) an oral or written confirmation that the Company knows of
no reason why the Shareholder should not proceed with the proposed sale
or disposition; or
(ii) a notification that the proposed disposition must be
delayed for a period of up to thirty (30) days as provided in Section
6(b) or
(iii) a confirmation from either the Chef Financial Officer or
the General Counsel of the Company that the Company requires a limited
time, not to exceed five (5) Business Days following the receipt of the
Company's receipt of the Shareholder's notice, within which to
determine which of the foregoing responses is appropriate under the
circumstances.
(b) Restriction on Sale. The Company may restrict disposition of such
Registrable Securities, in which event each Shareholder agrees not to dispose of
such Registrable Securities; provided that:
(i) the Company shall have delivered a notice in writing to
the Representative stating that a delay in the disposition of
Registrable Securities is necessary because the Company, in its
reasonable judgment, exercised in good faith, has determined that such
sales of Registrable Securities would require public disclosure by the
Company of material nonpublic information that the Company deems
advisable not to disclose;
(ii) in the event of the delivery of the notice described in
(i) above by the Company, the Company shall exert commercially
reasonable efforts to amend the Demand Registration Statement or amend
or supplement the Prospectus, if necessary and to take all other
actions necessary to allow the proposed disposition to take place as
promptly as practicable after the conditions referred to therein have
ceased to exist;
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(iii) the Company agrees to use all commercially reasonable
efforts to keep the Demand Registration Statement, as amended pursuant
to this Section 6(b), effective for an additional period of time equal
to the period during which sales were restricted pursuant to this
Section 6(b).
(c) Discontinuance of Sale. Each Shareholder agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in any of Sections 5(a)(i)(F)(1)-(6), such Shareholder shall forthwith
discontinue all sales and distributions of Registrable Securities pursuant to
the then-current Prospectus until the Representative receives copies of a
supplemental or amended Demand Prospectus as contemplated by Section 6(c)(ii),
or until the Representative is advised in writing by the Company that the use of
the Prospectus may be resumed, and, if so directed by the Company, the
Representative will deliver to the Company all copies then in the possession of
the Shareholders of the Prospectus in effect with respect to the Registrable
Securities at the time of such notice by the Company. The Company shall promptly
take all such action as may be necessary or appropriate, including, without
limitation, the filing of an amendment to the Demand Registration Statement
and/or the filing of an amended Prospectus or a Prospectus supplement, to limit
the duration of any discontinuance with respect to the sale and distribution of
Registrable Securities pursuant to this Section 6(d).
(e) Restrictions Cumulative. The restrictions described herein are in
addition to, and not in limitation of, any other restrictions that may be
applicable to each of the Shareholders, including, without limitation any
restrictions under applicable securities laws (such as the Company's employee
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and general restrictions against trading in Company
securities while in possession of material non-public information concerning the
Company).
7. Registration Expenses.
(a) The Company will bear all expenses of registration, except for any
underwriting spread and brokerage commission and transfer taxes incurred in
connection with sales of the Registrable Stock and except for expenses of any
legal counsel selected by the Shareholders to represent them in connection with
the sale of the Registrable Stock.
(b) Payment by Selling Shareholders. To the extent registration
expenses are not required to be paid by the Company, each holder of securities
included in any registration hereunder will pay those registration expenses
allocable on a share-by-share basis to the registration of such holder's
securities so included, and any registration expenses not so allocable will be
borne by all sellers of securities included in such registration in proportion
to the aggregate selling price of the securities to be so registered.
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8. Indemnification.
(a) Company Indemnification. The Company shall indemnify and hold
harmless, to the fullest extent permitted by law, each seller of Registrable
Securities, any underwriter for such registration and each person or entity, if
any, controlling such seller or underwriter within the meaning of the Securities
Act or the Exchange Act against all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and legal expenses) to
which such seller, underwriter or controlling person or entity, as the case may
be, may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) arise out of or are based upon any of
the following (collectively, "Violations"):
(ii) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, any Prospectus
or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; or
(iii) any violation or alleged violation by the Company, in
connection with such registration, of the Securities Act, the Exchange
Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law;
provided, however, that the Company shall not be liable in any such case for any
such loss, claim, damage, liability or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished for use in connection with such registration
by any such seller, underwriter or controlling person or entity.
(b) Selling Shareholder Indemnification. Each seller of Registrable
Securities shall indemnify and hold harmless, to the fullest extent permitted by
law, the Company, its officers, directors, employees, representatives and
agents, and each Person who controls (within the meaning of the Securities Act)
the Company, against all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and legal expenses) resulting from
any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, any Prospectus, or any amendment or supplement thereto,
and any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, to the extent the same
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact or any omission or alleged omission to state a material fact
in such Registration Statement, Prospectus, amendment or supplement, as the case
may be, made or omitted, as the case
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43
may be, in reliance upon and in conformity with written information furnished to
the Company by such seller for use therein, or if such offering is not an
underwritten offering, by such seller's failure to deliver a copy of the
Registration Statement, Prospectus or any amendment or supplement thereto after
the Company has furnished such seller with a sufficient number of copies of the
same. In no event shall any indemnification obligation under this Section 8(b)
or by any seller under Section 8(d) exceed the net proceeds from the offering
received by such seller.
(c) Notice of Claim. Each party entitled to indemnification under this
Section 8 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided, that counsel for the
Indemnifying Party, who will conduct the defense of such claim or litigation, is
approved by the Indemnified Party (whose approval will not be unreasonably
withheld or delayed); and provided, further, that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations except to the extent that its defense of the claim or
litigation involved is prejudiced by such failure. The Indemnified Party may
participate in such defense at such party's expense. No Indemnifying Party, in
the defense of any such claim or litigation, except with the consent of each
Indemnified Party, shall consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of any claim or litigation, and no Indemnified Party will
consent to entry of any judgment or settle any claim or litigation without the
prior written consent of the Indemnifying Party. Each Indemnified Party shall
furnish such information regarding himself, herself or itself and the claim in
question as the Indemnifying Party may reasonably request and as shall be
reasonably required in connection with the defense of such claim and litigation
resulting therefrom.
(d) Contribution. If for any reason the indemnification provided for in
this Section 8 from an Indemnifying Party, although otherwise applicable by its
terms, is determined by a court of competent jurisdiction to be unavailable to
an Indemnified Party hereunder, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by the Indemnified Parties as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of such Indemnifying Party and the Indemnified Parties in
connection with the actions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and the Indemnified Parties shall
be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact,
has been made by, or relates to information supplied by, such Indemnifying Party
or the Indemnified Parties, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities
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44
and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
9. Participation in Underwritten Registrations. No Person may participate
in any underwritten registration hereunder unless such Person (a) agrees to sell
such Person's securities on the basis provided in any underwriting arrangements
approved by the Company and other Person or Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
10. Reports Under Exchange Act. With a view to making available to the
holders of the Registrable Securities the benefits of Rule 144 and any other
rule or regulations of the Securities and Exchange Commission that may at any
time permit a holder to sell securities of the Company to the public without
registration, the Company agrees to use its reasonable best efforts to do all of
the following:
(a) Public Information. Make and keep public information available
as contemplated in Rule 144, at all times;
(b) SEC Reports. File with the Securities and Exchange Commission all
reports and other documents required of the Company under the Securities Act and
the Exchange Act; and
(c) Rule 144 Statement. Furnish to any holder, so long as such holder
owns any of the Registrable Securities, forthwith upon request a written
statement by the Company that it has complied with the reporting requirements of
Rule 144, the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements), a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
with the Securities and Exchange Commission by the Company as may be reasonably
requested in availing any holder, under any rule or regulation of the Securities
and Exchange Commission, of the right to sell any such Registrable Securities
without registration.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which violates the rights
granted to the holders of Registrable Securities in this Agreement.
(b) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages
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45
may not be an adequate remedy for any breach of the provisions of this Agreement
and that any party may in its sole discretion apply to any court of law or
equity of competent jurisdiction (without posting any bond or other security)
for specific performance and for other injunctive relief in order to enforce or
prevent violation of the provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of at least a majority of the
Registrable Securities.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and permitted assigns. No Shareholder
may assign his or her rights or obligations under this Agreement without the
prior written consent of the Company.
(e) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. The corporate law of Delaware will govern all issues
concerning the relative rights of the Company and its shareholders. All other
questions concerning the construction, validity and interpretation of this
Agreement will be governed by the internal law, and not the law of conflicts, of
Michigan.
(i) Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by registered or certified mail, postage prepaid, facsimile, or
overnight delivery service addressed as follows:
If to Acquisition Company or: With a copy to:
National TechTeam, Inc. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Attn: Mr. A Tam Detroit, MI 48226
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If to Representative or any Shareholder: With a copy to:
Newco Consultants, LLC ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any party may by notice change the address to which notice or other
communications to it are to be delivered or mailed.
SIGNATURES APPEAR ON THE FOLLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
NATIONAL TECHTEAM, INC.
By:
--------------------------------
Its:
--------------------------------
SHAREHOLDERS
------------------ -----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------ -----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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SEPARATION AND RELEASE AGREEMENT
AGREEMENT dated as of the 31st day of March, 2000 by and among National
TechTeam, Inc., a Delaware corporation ("TechTeam"); TechTeam Capital Group,
LLC, a Michigan limited liability company ("TTCG"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇
▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇▇ ▇▇▇▇▇") and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇▇▇ ▇▇▇▇▇") The foregoing individuals are hereinafter
collectively referred to as the "Employees."
RECITALS
WHEREAS, ▇▇▇▇▇ ▇▇▇▇▇ is an employee of TTCG under a certain Employment
Agreement dated as of January 31, 1998 ("Employment Agreement");
WHEREAS, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ are presently employees
of TTCG;
WHEREAS, Newco Consultants, LLC, a new company, organized by certain of
the Employees wishes to purchase certain of the assets of TTCG, which
transaction is the subject of a separate agreement and instruments between the
parties hereto or their affiliates ("TTCG Sale"); and
WHEREAS, Employees on the one hand, and TechTeam and TTCG on the other
hand, each wish to terminate the existing relationships between them and, except
for certain limited rights and obligations that are specifically reserved or
excluded herein, fully and finally to release each other from any and all
liability existing by virtue thereof or from any other reason or thing.
NOW THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. Contingent Shares. TechTeam agrees, subject to the terms and
conditions set forth herein, to issue to the Employees the number of shares of
the restricted common stock of TechTeam ("Contingent Shares"), which shall be
determined as set forth below and which shares shall be issued to the Employees
in the nearest whole shares that equal the proportions set forth opposite their
names:
▇▇▇▇▇ ▇▇▇▇▇ - 50%
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 25%
▇▇▇▇▇▇ ▇▇▇▇▇ - 25%
Issuance of the Contingent Shares shall be subject to the following terms and
conditions:
(a) the number of shares to be issued shall be determined as
follows:
49
(i) Step One: the attached Schedule 1 contains a
preliminary calculation of the number of Contingent Shares
that has been determined based solely upon (A) the actual
financial results of TTCG for the period from 2/1/98 through
2/29/00 and (B) pro-forma financial results of TTCG for the
period from 3/1/00 through 12/31/01. The Contingent Shares
shown on Schedule 1 shall be the "Base Number" for purposes of
the calculation.
(ii) Step Two: Not later than January 31, 2001,
TTCG's accountants shall prepare TTCG's financial statements
for the ten months ended 12/31/00 in accordance with generally
accepted accounting principles, consistently applied. Schedule
1 shall then be revised (to prepare a "Revised Schedule 1") as
follows:
(A) TTCG's net operating income for the ten months
ended 12/31/00 shall be substituted for the same
period results in the pro-forma financial
results referenced in (i)(B) above and,
(B) only in the event that TTCG's net operating
income for the ten months ended 12/31/00 is
greater than or less than the Profit/Loss shown
on Schedule 1 by a factor of 15%, Employees will
prepare, or cause to be prepared, a revised
pro-forma financial projection for TTCG for 2001
which will be prepared consistently with the
methodology and principles utilized in the
preparation of (i)(B) above, and that revised
pro forma shall be substituted for the pro forma
referenced in (i)(B) above.
Following the above calculations, the Base Number of
Contingent Shares will be increased or reduced, as
appropriate, by the difference, if any, between the
original Schedule 1 and the Revised Schedule 1. That
resulting number of Contingent Shares will be the
number to be issued to the Employees and TechTeam
shall, no later than February 15, 2001 instruct its
transfer agent to issue the proper number shares to
Employees. Notwithstanding any of the foregoing, in
no event shall the number of Contingent Shares exceed
325,000 shares of TechTeam stock.
(b) For the purpose of determining the Contingent Amount and
the number of Contingent Shares, the parties agree that interest on
inter-company borrowings between TTCG and TechTeam prior to March 31,
2000 shall be included as a cost item. The parties further agree that
for the
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period between April 1, 2000 and December 31, 2001, interest on
intercompany borrowings between TTCG and TechTeam shall not be included
as a cost item for purposes of determining the Contingent Amount and
the number of Contingent Shares and in addition any future gains or
losses to TTCG that result from the sale of assets that are coming off
Leases shall be excluded from calculation of the Contingent Amount and
the number of Contingent Shares.
(c) The pro-forma financial results have been prepared solely
by the Employees without any direction or influence from any other
persons. The parties further confirm that neither TechTeam nor TTCG
shall have any obligation (nor do they have any intention) to take any
actions to increase the business of TTCG.
(d) The accounting effect of any sale, transfer, assignment,
or disposition of any of TTCG's right, title, or interest in the assets
of TTCG shall have no effect upon the calculation of the Contingent
Amounts or the number of Contingent Shares.
(e) Any change by either TTCG, its parent company, or its
outside public accountants in the carrying value or rate of
depreciation of any of TTCG's assets (except for assets added to the
portfolio for the first three months of 2000) shall have no effect for
purposes of calculating the Contingent Amount or the number of
Contingent shares.
(f) Issuance of the Contingent Shares shall be subject to the
condition precedent that all outstanding indebtedness under the
promissory notes ("Notes") given by Newco and by the Employees to TTCG
in connection with the TTCG Sale shall have been discharged. In the
event such indebtedness shall not have been discharged by January 31,
2001, TechTeam shall be entitled to direct the transfer agent to issue
to it the nearest whole number of Contingent Shares, based upon the
closing price of TechTeam common stock on the last trading day prior to
January 15, 2001 on the NASDAQ National Market System (or such on such
other national exchange on which it may then be listed), as shall be
sufficient to discharge in full the outstanding indebtedness, and to
issue any remaining Contingent Shares to the Employees.
(g) The Contingent Shares issued to Shareholder will have
certain registration rights as set forth in a separate Registration
Rights Agreement of even date herewith.
2. Application of Preferred Dividends. All preferred dividends to which
▇▇▇▇▇ ▇▇▇▇▇ is entitled pursuant to the TTCG's Declaration of Preferred
Dividends shall be applied to payment of the Loan Receivables promissory note to
be delivered by ▇▇▇▇▇ ▇▇▇▇▇ to TTCG in
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51
connection with the Sale. Any preferred dividends payable over and above the
outstanding unpaid balance of the loan shall be payable to ▇▇▇▇▇ ▇▇▇▇▇.
3. Termination of Employment. Employees each hereby resign all of their
respective officer and employee positions with TTCG effective as of the close of
business on March 31, 2000. ▇▇▇▇▇ ▇▇▇▇▇ shall continue as a director of TTCG.
4. Termination of Employment Agreement. The Employment Agreement shall be
terminated effective March 31, 2000. In consideration of the termination of the
Employment Agreement and in full discharge and satisfaction of all of TTCG's and
TechTeam's obligations under the Employment Agreement, TTCG shall (a) pay to
▇▇▇▇▇ ▇▇▇▇▇, as ▇▇▇▇▇▇▇▇▇ pay, the sum of $166,666.67 dollars (from which TTCG
shall deduct all required withholdings for taxes, FICA, FUTA Medicare and any
other required withholdings), and (b) if ▇▇▇▇▇ ▇▇▇▇▇ elects COBRA coverage,
reimburse ▇▇▇▇▇ ▇▇▇▇▇ for the amount of the COBRA continuation coverage premiums
for the period through January 31, 2001. The period during which TTCG reimburses
▇▇▇▇▇ ▇▇▇▇▇' COBRA continuation coverage will count as part of the period during
which ▇▇▇▇▇ ▇▇▇▇▇ is entitled to exercise COBRA rights. Aside from the
foregoing, ▇▇▇▇▇ ▇▇▇▇▇ shall not have any further rights, benefits or
entitlements of any nature whatsoever by virtue of the Employment Agreement or
his employment with TTCG.
5. Stock Options. Subject to approval by the Board of Directors of
TechTeam, TechTeam will permit each Employee other than ▇▇▇▇▇ ▇▇▇▇▇ to exercise
all options that are vested but unexercised as of March 31, 2000 through the
date on which they would have otherwise expired had the Employee been employed
with the Company. ▇▇▇▇▇ ▇▇▇▇▇' stock options will continue to be governed by the
provisions his non-qualified Stock Option Agreement dated January 31, 1998.
6. Condition Precedent. The obligations of the parties hereunder are
subject to the condition that all of the conditions precedent to closing the
TTCG Sale shall have been completed to the satisfaction of TechTeam and TTCG,
and the Closing shall have occurred.
7. Mutual Releases. Except for (i) any rights or remedies of TTCG with
respect to transactions involving Capricorn Capital Group de Mexico, S.A. de
C.V., and (ii) the obligations of the parties under this Agreement and under the
Sale Agreement, TechTeam and TTCG, on the one hand, and the Employees, on the
other hand, hereby mutually release, acquit, and forever discharge each other,
together with each other's agents, employees, attorneys, insurers, successors,
heirs and assigns, of and from any and all claims, causes, debts, liabilities,
obligations, security interests in real or personal property, or causes of
action of any kind or nature, known or unknown, suspected or unsuspected,
contingent or liquidated, at law or in equity, arising or accruing at any time
from the beginning of the world up to and through the date of this Agreement, or
otherwise based upon facts or circumstances in existence as of the date of this
Agreement. The releases herein shall include, without limitation, all claims
arising out of termination of Employees' employment with TTCG, including all
claims for breach of contract, retaliatory or wrongful discharge, and
discrimination under any state or federal law, including, without limitation,
the federal Age Discrimination in Employment Act.
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8. Acknowledgements by Employees. Employees each acknowledge that they
have had at least 21 days in which to consider this Agreement and have been
advised in writing to consult with an attorney before signing it. Employees have
read and understand this Agreement, including the release of claims, and
voluntarily accept its terms and conditions. Employees acknowledge that they are
not signing this Agreement under duress or coercion or undue influence of any
kind on the part of the TTCG or TechTeam. Employees understand that this
Agreement will not be effective or enforceable for seven days following the date
of their signatures below and that during this time, and this time only,
Employees may revoke this Agreement. Any revocation must be in writing, signed
by the Employee choosing revocation, and delivered or mailed to TTCG and the
Company so as to arrive within seven days of the date he signed this Agreement.
Employees acknowledge that no one has made representations to them concerning
the terms or effect of this Agreement other than as specifically stated herein.
9. Covenant Not to Sue. Each Employee agrees that he will not commence or
prosecute any action or proceeding against TechTeam, TTCG, or any of the other
persons released by him herein, in any court, arbitration tribunal or other
tribunal, on account of any claim arising, directly or indirectly, out of any of
the facts and matters with respect to which Employees have given his release or
out of the grant or ownership of TechTeam's common stock or options to purchase
such stock (excluding only any claims arising out of the covenants of TechTeam
in this Agreement). For breach of this covenant, each Employee shall be liable
for all of such releasees' costs in investigating, defending or otherwise
prosecuting any such action or actions brought by such Employee, including their
reasonable attorney's fees.
10. Representations and Warranties of Employees.
(a) Employees hereby acknowledge that the Contingent Shares to be
received by Employees will be acquired for Employees' own account and
without any view to the distribution of any part thereof without
registration under applicable federal and state securities laws. Employees
represents that they do not have any agreements or arrangements to sell,
transfer or grant participations with respect to the Contingent Shares.
(b) Employees understand that the Contingent Shares will not be
registered prior to their issuance under the United States federal or state
securities laws in reliance upon exemption from registration under the
Securities Act pursuant to Section 4(2) thereof, and that TechTeam's
reliance on such exemption is predicated on Employees' representations set
forth herein. The Contingent Shares will be subject to registration as
provided in Section 1(d).
(c) Employees represent that each of them has such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of their investment in the Contingent Shares and has
the ability to bear the economic risks of such investment. Employees
further represents that they have had (i) access to TechTeam's filings with
the Securities and Exchange Commission, (ii) the opportunity to ask
questions of, and receive answers from, TechTeam concerning TechTeam and
its business and (iii) the opportunity to obtain additional information (to
the extent
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53
TechTeam possessed such information or could acquire it without
unreasonable expense) necessary to verify the accuracy of any information
received or to which Employees had access.
(d) Employees understand and agree that the Contingent Shares may not
be sold, transferred or otherwise disposed of without registration under
the Securities Act and applicable state laws, unless exemptions from
registration requirements are available, and that in the absence of an
effective registration statement covering those shares or an available
exemption from applicable registration requirements, those shares must be
held indefinitely. In particular, the Contingent Shares may not be sold
pursuant to Rule 144 promulgated under the Securities Act unless all of the
conditions of such rule are met.
(e) Employees agree that they will not offer, sell, mortgage, pledge or
otherwise dispose of any of the Contingent Shares (other than pursuant to
an effective registration statement under the Securities Act) unless and
until Employees deliver an opinion of counsel satisfactory to TechTeam that
registration under applicable United States federal or state securities
laws is not required.
(f) Employees agree that all certificates for Contingent Shares shall
bear the following legend (which legend will be removed when the
registration statement for those shares is declared effective by the SEC):
These securities have not been registered, qualified, recommended,
approved or disapproved under United States federal securities law or
state securities laws. The shares represented by this certificate may
not be sold, transferred or otherwise disposed of by an investor
without (i) registration under United States federal and state
securities laws, or (ii) delivery of an opinion of counsel satisfactory
to the corporation that neither the sale nor the proposed transfer
constitutes a violation of any United States federal or state
securities law.
(h) Employees have prepared Schedule 1 in good faith and based upon their
reasonable and good faith estimates of the pro-forma results of TTCG and in
accordance with recognized principles in preparation of financial projections.
11. Further Assurances. Employees shall, from time to time, upon reasonable
request of TTCG or TechTeam, and without any further consideration, execute and
deliver such additional papers, instruments and documents and take such further
action and give such further assurances as may be necessary, proper or
convenient to give effect to this Agreement or to assist TTCG or TechTeam with
respect to meeting their obligations for reporting, recordkeeping or documenting
actions taken in connection with the operations of TTCG and Employees' positions
as officers or directors or employees thereof.
12. General
(a) Entire Agreement. This Agreement and the Sale Agreement, together with
each other agreement among the parties to be executed and delivered at the
closing of the TTCG Sale, constitute the entire agreement among the parties
pertaining to the subject matter thereof and supercede all prior and
contemporaneous agreements, understandings, negotiations and
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54
discussions, whether oral or written, of the parties, and there are no other
agreements between the parties in connection with the subject matter thereof
except as specifically set forth herein. No amendment, supplement, modification,
waiver or termination of this Agreement shall be implied or be binding unless in
writing and signed by the party against which such amendment, supplement,
modification, waiver or termination is asserted.
(b) Successors and Assigns. All of the terms and conditions of this
Agreement shall be binding upon and inure to the benefit of the parties'
respective successors, assigns, heirs and personal representatives. This
Agreement is not intended to confer upon any person other than the parties and
their successors any rights or remedies under or by reason of this Agreement.
(c) Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered, forwarded by overnight air express and receipted for by an
agent of the recipient or mailed by registered or certified United States Mail,
postage prepaid and return receipt requested, to the following address (or to
such other address of the party as shall have been specified to the other
parties to this Agreement):
If to TechTeam or TTCG:
National TechTeam, Inc.
Attn: ▇▇. ▇. ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Butzel Long
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Employees, to such Employee at:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the day
and year first above written.
NATIONAL TECHTEAM, INC.
ATTEST:
By: By:
--------------------------------- ---------------------------------
Printed Name: Printed Name:
---------------------- ----------------------
Title: Title:
----------------------------- -----------------------------
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TECHTEAM CAPITAL GROUP, LLC
ATTEST:
By: By:
--------------------------------- ---------------------------------
Printed Name: Printed Name:
---------------------- ----------------------
Title: Title:
----------------------------- -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
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SERVICE AND RE-MARKETING AGREEMENT
Agreement ("Agreement") made as of the 31st day of March, 2000 by and
between TechTeam Capital Group, LLC, a Michigan Limited Liability Company
("TTCG"), and Newco Consultants, LLC, a Michigan limited liability company
("NEWCO"). TTCG and NEWCO are sometimes referred to hereafter as the "Parties."
RECITALS
A. TTCG is engaged in the business of leasing equipment and has
an existing portfolio of operating and direct financing leases.
B. NEWCO is a newly formed limited liability company organized for the
purposes of acquiring certain assets of TTCG pursuant to an Asset Purchase
Agreement between TTCG and NEWCO of even date herewith.
C. NEWCO and TTCG each desire to enter into an agreement whereby NEWCO
will provide lease management and re-marketing services to TTCG.
NOW, THEREFORE, in consideration of the mutual promises and benefits
contained herein, the parties agree as follows:
1. SERVICES.
1.1 LEASE MANAGEMENT SERVICES TO BE PROVIDED BY NEWCO. NEWCO
shall provide the following services for the portfolio of leases
identified on Schedule A (the "Leases"), as such schedule may be
amended from time to time:
(a) Assume all responsibility for communicating with
lessees under the Leases; and
(b) Coordinate and implement the return, inspection
and storage of the equipment subject to the Leases.
1.2 RE-MARKETING SERVICES TO BE PROVIDED BY NEWCO. NEWCO shall
use its best efforts to re-lease or resell the leased assets upon
termination of the Leases. NEWCO's remarketing services shall be
performed on a non-exclusive basis and NEWCO shall be required to
obtain TTCG's prior written approval to any re-lease or resale, except
when such re-lease or sale is in accordance with the terms of the
master lease or the equipment schedule then in effect.
1.3 INDEPENDENT CONTRACTOR RELATIONSHIP. The parties agree
that NEWCO shall provide the services to TTCG hereunder as an
Independent Contractor and the
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provision of such services shall not be construed to create an
employer/employee or agency relationship between TTCG and NEWCO. Except
as expressly provided herein, neither party has the right or authority
to assume or create any obligation, liability or responsibility on
behalf of the other, or to hold itself out as an agent or
representative of the other.
2. TERM OF AGREEMENT AND TERMINATION. This Agreement shall commence on
April 1, 2000 ("Effective Date") and remain in full force and effect for a
period of four (4) years. Notwithstanding the foregoing, this Agreement may be
terminated by either party in the event of a material breach of this Agreement
by the other party.
3. PAYMENT AND TERMS.
3.1 LEASE MANAGEMENT SERVICES. For lease management services
under Section 1.1 of this Agreement, TTCG shall pay NEWCO a total
service fee of $675,000, equivalent to $14,062.50 per month, prepaid
in nine equal monthly installments of $75,000 each (the "Service
Fee").
The Service Fee shall be paid by TTCG to NEWCO as follows:
(a) TTCG shall pay NEWCO $35,000 on the first day of each
month for nine consecutive months commencing April 1, 2000;
(b) TTCG shall credit $40,000 of the Service Fee otherwise
payable to NEWCO each month for the nine months ending December 1, 2000
to repayment of the indebtedness of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇, respectively, under the Loan Receivables Notes (as
defined in the Asset Purchase Agreement by and among TTCG, NEWCO,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ of even date
herewith). Such credit shall be allocated each month among the Loan
Receivable Notes as follows:
Note Given by Credit
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $15,044.43
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $265.40
▇▇▇▇▇ ▇. ▇▇▇▇▇ $24,690.17
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59
3.2 RE-MARKETING SERVICES. For any Leases where NEWCO has
provided Re-Marketing Services under Section 1.2 of this Agreement,
TTCG shall pay NEWCO a quarterly fee (the "Re-Marketing Fee") equal to
100 percent of the amount, if any, by which the aggregate cash received
for re-leasings and resales of assets during the calendar quarter
exceeds the aggregate residual value of such assets. For any Leases
where NEWCO has provided Re-Marketing Services under Section 1.2 of
this Agreement, TTCG shall also pay NEWCO a quarterly fee equal to 100
percent of the amount, if any, by which the aggregate cash received
exceeds the aggregate current book value of estimated residuals from
re-marketing agreements on previously sold leases during the same
calendar quarter. A listing of those leases with booked estimated
residuals and those with no booked estimated residuals is attached as
Schedule B. In addition, TTCG shall pay NEWCO 100 percent of the cash
received from re-marketing agreements on sold leases where TTCG has
booked no estimated residual value.
The Re-Marketing Fee shall be paid by TTCG to NEWCO within
thirty (30) days after each March 31, June 30, September 30 and
December 31 while this Agreement remains in effect, commencing June 30,
2000.
4. REPRESENTATIONS AND WARRANTIES OF NEWCO. Representations and
warranties made by NEWCO herein shall survive the term of this Agreement for a
period of 2 years after any termination hereof. The representations and
warranties in this Section 4 are deemed to be material and TTCG is entering into
this Agreement relying on such representations and warranties. NEWCO represents
and warrants to TTCG as follows:
4.1 AUTHORIZATION. The execution and delivery of this
Agreement by NEWCO has been duly authorized by all requisite action.
This Agreement constitutes the valid and legally binding obligation of
NEWCO enforceable against it in accordance with the terms of this
Agreement. The execution, delivery and performance by NEWCO of this
Agreement, and the consummation by it of the transactions contemplated
hereby and thereby, will not, with or without the giving of notice or
the passage of time or both, (a) violate the provisions of any law,
rule or regulation applicable to NEWCO; (b) violate any judgment,
decree, order or award of any court, governmental body or arbitrator
or; (c) violate the provisions of any separate contract, agreement or
arrangement to which NEWCO is bound.
4.2 NEWCO'S KNOWLEDGE OF BUSINESS. NEWCO is highly familiar
with the details of the Leases and the business of TTCG by virtue of
the fact that NEWCO's officers and/or owners have conducted the
business of TTCG since its inception. NEWCO is relying exclusively on
its knowledge and understanding of TTCG in evaluating whether to
proceed with the transactions contemplated by this Agreement and
acknowledges that TTCG has made no representations, oral, written or
otherwise, as to the condition or value of the Leases or the assets
leased thereunder.
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5. REPRESENTATIONS AND WARRANTIES OF TTCG. Representations and
warranties made by TTCG herein shall survive the term of this Agreement for a
period of 2 years after any termination hereof. The representations and
warranties in this Section 5 are deemed to be material and NEWCO is entering
into this Agreement relying on such representations and warranties.
5.1 AUTHORIZATION. The execution and delivery of this
Agreement by TTCG has been duly authorized by all requisite action.
This Agreement constitutes the valid and legally binding obligation of
TTCG, enforceable against it in accordance with the terms of this
Agreement. The execution, delivery and performance by TTCG of this
Agreement and the agreements provided for herein, and the consummation
by it of the transactions contemplated hereby and thereby, will not
with or without the giving of notice or the passage of time or both,
(a) violate the provisions of any law, rule or regulation applicable to
TTCG; (b) violate any judgment, decree, order or award of any court,
governmental body or arbitrator or; (c) violate the provisions of any
separate contract, agreement or arrangement to which TTCG is bound.
6. INDEMNIFICATION AND REIMBURSEMENT.
6.1 INDEMNIFICATION OF TTCG BY NEWCO.
(a) INDEMNIFICATION. NEWCO hereby agrees to indemnify, defend
and hold harmless TTCG and any parent, subsidiary or affiliate
thereof, and all directors, officers. employees, agents and
consultants of each of the foregoing (collectively, the "Indemnified
TTCG Parties" and individually an "Indemnified TTCG Party") from and
against all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities (whether absolute, or
accrued, contingent or otherwise), costs and expenses, including but
not limited to, interest, penalties and attorneys' fees and expenses
(collectively, "Damages"), asserted against, imposed upon or
incurred by any Indemnified TTCG Party, directly or indirectly, by
reason of or resulting from or relating to any of the following:
(i) Misrepresentation or breach by NEWCO of any warranty or
covenant or term or condition made or contained in this
Agreement or in any certificate, schedule or other instrument
furnished or to be furnished to TTCG under this Agreement;
(ii) Litigation or other claims arising from the acts or
failures to act of NEWCO in accordance with (A) applicable
federal, state or local statute, ordinance or common law or (B)
the terms and conditions of this Agreement.
The only exclusion from this indemnification provision is liability
arising from negligent acts or omissions of TTCG.
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61
(b) NOTICE AND DEFENSE OF CLAIMS. If requested by NEWCO or if
the Indemnified TTCG Party so desires, the Indemnified TTCG Party
shall tender the defense to NEWCO of any matter for which the
Indemnified TTCG Party believes it is entitled to indemnification
pursuant to Section 6.1(a) of this Agreement, in which event NEWCO
shall conduct such defense at its sole cost and thereafter be liable
for all Damages with respect to such claim or proceeding. Such
notice shall be given in accordance with Section 7.7 hereof.
If NEWCO elects to assume control of such defense or settlement,
it shall conduct such defense or settlement in a manner reasonably
satisfactory and effective to protect the Indemnified TTCG Party
fully; NEWCO and its counsel will keep the Indemnified TTCG Party
fully advised as to the conduct of such defense or settlement, and
no compromise or settlement shall be agreed or made without the
Indemnified TTCG Party's written consent. In any case, the
Indemnified TTCG Party shall have the right to employ its own
counsel and such counsel may participate in such action, but the
reasonable fees and expenses of such counsel shall be at the expense
of the Indemnified TTCG Party, when and as incurred unless (A) the
employment of counsel by the Indemnified TTCG Party has been
authorized in writing by NEWCO, (B) the Indemnified TTCG Party shall
have reasonably concluded that there may be a conflict of interest
between NEWCO and the Indemnified TTCG Party in the conduct of the
defense of such action, or (C) NEWCO shall not in fact have employed
independent counsel reasonably satisfactory to the Indemnified TTCG
Party to assume the defense of such action and shall have been so
notified by the Indemnified TTCG Party. If clause (B) or (C) of the
preceding sentence shall be applicable, then counsel for the
Indemnified TTCG Party shall have the right to direct the defense of
such claim, action, suit or proceeding on behalf of the Indemnified
TTCG Party and the reasonable fees and disbursements of such counsel
shall constitute Damages hereunder.
The Indemnified TTCG Party and NEWCO, as the case may be, shall
be kept fully informed of such claim, action, suit or proceeding at
all stages thereof, whether or not such party is represented by its
own counsel.
6.2 INDEMNIFICATION OF NEWCO BY TTCG.
(a) INDEMNIFICATION. TTCG hereby agrees to indemnify, defend and
hold harmless NEWCO and any parent, subsidiary or affiliate thereof,
and all directors, officers, employees (except the Leased
Employees), agents and consultants of each of the foregoing
(collectively, the "Indemnified NEWCO Parties," and individually, an
"Indemnified NEWCO Party") from and against all demands, claims,
actions or causes of action, assessments, losses, damages,
liabilities, (whether absolute, or accrued, contingent or
otherwise), costs and expenses, including but not limited to,
interest, penalties and attorneys' fees and expenses (collectively,
"Damages"), asserted against, imposed upon or incurred
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62
by any Indemnified NEWCO Party, directly or indirectly, by
reason of or resulting from or relating to any of the following:
(i) Misrepresentation or breach by TTCG of any
warranty or covenant or term or condition made or contained
in this Agreement or in any certificate, schedule or other
instrument furnished or to be furnished to NEWCO under this
Agreement; and
(ii) Litigation or other claims arising from the acts
or failures to act of TTCG in accordance with (A)
applicable federal, state or local statute, ordinance or
common law or (B) the terms and conditions of this
Agreement.
The only exclusion from this indemnification provision is liability
arising from grossly negligent acts of NEWCO.
(b) NOTICE AND DEFENSE OF CLAIMS. If requested by the TTCG or
if the Indemnified NEWCO Party so desires, the Indemnified NEWCO
Party shall tender the defense to TTCG of any matter for which the
Indemnified NEWCO Party believes it is entitled to indemnification
pursuant to Section 6.2(a) of this Agreement, in which event TTCG
shall conduct such defense at its sole cost and thereafter be liable
for all Damages with respect to such claim or proceeding. Such
notice shall be given in accordance with Section 7.7 hereof.
If TTCG elects to assume control of such defense or settlement,
it shall conduct such defense or settlement in a manner reasonably
satisfactory and effective to protect the Indemnified NEWCO Party
fully; TTCG and its counsel will keep the Indemnified NEWCO Party
fully advised as to the conduct of such defense or settlement, and
no compromise or settlement shall be agreed or made without the
Indemnified NEWCO Party's written consent. In any case, the
Indemnified NEWCO Party shall have the right to employ its own
counsel and such counsel may participate in such action, but the
reasonable fees and expenses of such counsel shall be at the expense
of the Indemnified NEWCO Party, when and as incurred unless (A) the
employment of counsel by the Indemnified NEWCO Party has been
authorized in writing by TTCG, (B) the Indemnified NEWCO Party shall
have reasonably concluded that there may be a conflict of interest
between TTCG and the Indemnified NEWCO Party in the conduct of the
defense of such action, or (C) TTCG shall not in fact have employed
independent counsel reasonably satisfactory to the Indemnified NEWCO
Party to assume the defense of such action and shall have been so
notified by the Indemnified NEWCO Party. If clause (B) or (C) of the
preceding sentence shall be applicable, then counsel for the
Indemnified NEWCO Party shall have the right to direct the defense
of such claim, action, suit or proceeding on behalf of the
Indemnified NEWCO Party and the reasonable fees and disbursements of
such counsel shall constitute Damages hereunder.
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The Indemnified NEWCO Party and TTCG, as the case may
be, shall be kept fully informed of such claim, action, suit
or proceeding at all stages thereof, whether or not such party
is represented by its own counsel.
6.3 COOPERATION. The parties hereto agree to render to each
other such assistance as may reasonably be expected of each other and
to cooperate in good faith with each other in order to insure the
proper and adequate defense of any claim, action, suit or proceeding
brought by any third party. Where counsel has been selected pursuant to
Section 6.1(a) or Section 6.2(a), each party shall be entitled to rely
on the advice of such counsel in the conduct of the defense.
6.4 CONFIDENTIALITY. The parties agree to cooperate in such a
manner as to preserve and uphold the confidentiality of all
confidential business records and the attorney-client and work-product
privileges. In connection therewith, each party agrees (a) it will use
its best efforts in any action, suit or proceeding in which it has
assumed or participated in the defense to avoid production of
confidential business records (consistent with applicable law and rules
of procedures) and (b) all communications between any party hereto and
counsel responsible for or participating in the defense of any action,
suit or proceeding shall, to the extent possible, be made so as to
preserve any applicable attorney-client or work-product privilege.
7. MISCELLANEOUS.
7.1 ASSIGNMENT. Neither party shall assign this Agreement or
its rights and duties hereunder, nor any interest herein, without prior written
consent from the other.
7.2 ENTIRE AGREEMENT. This Agreement and the Schedules annexed
hereto constitute the entire agreement between the parties with regard
to the subject matter herein. No oral or written agreement or practice
between the parties relating to the subject matter herein shall
supersede this Agreement.
7.3 AMENDMENT. None of the terms and provisions of this
Agreement may be modified or amended in any way except by an instrument
in writing executed by each party hereto.
7.4 WAIVER. Failure by either party hereto at any time to
require performance by the other party or to claim a breach of any
provision of this Agreement will not be construed as a waiver of any
subsequent breach nor effect the validity and operation of this
Agreement, nor prejudice either party with regard to any subsequent
action.
7.5 NOTICES. Any notice or other communications required or
permitted hereunder shall be sufficiently given if in writing and
delivered personally or sent by telex, telecopy or other wire
transmission (with request for assurance in a manner typical with
respect to communications of that type), overnight air courier (postage
prepaid),
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registered or certified mail (postage prepaid with return
receipt requested), addressed to the party's principal place of
business (attention to the president) or to such other address of which
the parties may have given notice. Unless otherwise specified herein,
notices shall be deemed received (a) on the date delivered, if
delivered personally or by wire transmission; (b) on the next business
day after deposit with an overnight air courier; or (c) three business
days after being sent, if sent by registered or certified mail.
7.6 GOVERNING LAW. This Agreement shall be interpreted and
enforced under the laws of the State of Michigan applicable to
contracts made and to be performed entirely within such State without
giving effect to choice of law principles of such State. The parties
irrevocably consent to the jurisdiction of the courts of Michigan to
determine all issues which may arise under this Agreement.
7.7 SEVERABILITY. If any one or more of the provisions of this
Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected, impaired or
prejudiced thereby.
7.8 FORCE MAJEURE. Neither party hereto shall be liable to the
other for any loss of business or any other damages caused by an
interruption of this Agreement whereas such interruption is due to:
war, rebellion or insurrection; an act of God; fire; government
statute, order, or regulation prohibiting the performance of this
Agreement; riots, strikes, labor stoppages, lockouts or labor disputes
to the extent such occurrences are not caused by the actions of the
party seeking relief under this Section; or other causes beyond the
reasonable control of NEWCO or TTCG.
7.9 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon NEWCO and TTCG and the successors, transfers and assigns of each.
7.10 SECTION HEADINGS. The Section Headings of this Agreement
are for the convenience of the parties only and in no way after,
modify, amend, limit or restrict contractual obligations of the
parties.
7.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the
day and year first above written.
NEWCO CONSULTANTS, LLC
By:
---------------------------
Its:
---------------------------
TECHTEAM CAPITAL GROUP, LLC
By:
---------------------------
Its:
---------------------------
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SCHEDULE A
LEASES
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SCHEDULE B
SCHEDULE OF
RESIDUAL VALUES
11
