INDEMNIFICATION
AGREEMENT
This Agreement (this “
Agreemen t”) is made and entered into as of the 18
th day of February, 2009 by and among APAC Customer
Services, Inc., an Illinois corporation (the “ Company
”), on the one hand, and each of Cindy K. Andreotti, John C.
Kraft, Bhaskar Menon, John J. Park, Samuel K. Skinner and John L.
Workman (collectively, the “ Indemnitees ”), on
the other hand.
WHEREAS, there has been presented to
the Board of Directors (the “ Board ”) of the
Company a proposal (the “ Tresar Proposal ”)
whereby Tresar Holdings LLC (“ Tresar ”) would
acquire all of the outstanding shares of common stock of the
Company other than those owned by Theodore G. Schwartz, the
Company’s founder and current Chairman of the Board, and
certain related holders (such proposed transaction, collectively
with any other proposed transaction to acquire all or a substantial
portion of the stock or assets of the Company, or to engage in a
merger, combination or other similar transaction involving the
Company, whether by or with Tresar or any other person or entity,
including such a transaction proposed following execution of a
definitive agreement with Tresar concerning a transaction, a
“ Transaction ”);
WHEREAS, in response to the Tresar
Proposal, the Board has formed a special committee of the Board
(the “ Special Committee ”) consisting of
Ms. Andreotti, Mr. Kraft, Mr. Menon, Mr. Park and
Mr. Workman to review
and evaluate the Tresar Proposal and any alternative proposals that
may be received from other parties (“ Other Proposals
”);
WHEREAS, Mr. Skinner, as an
independent member of the Board, may be involved in reviewing and
evaluating the Tresar Proposal and any Other Proposals;
WHEREAS, the Board believes that in
order for the members of the Special Committee and Mr. Skinner to
be able to appropriately evaluate and respond to the Tresar
Proposal and any Other Proposals and, if appropriate, negotiate a
Transaction in the best interests of the Company and its
stockholders (or any subset of the stockholders of the Company that
the Special Committee determines to be appropriate) such
individuals need adequate protection against inordinate risks of
claims and actions against them arising out of their service to and
activities on behalf of the Company and its stockholders in such
capacity;
WHEREAS, in order to provide
increased certainty to the Indemnitees of substantial protection
against personal liability, the Board has determined that it is
reasonable, prudent and in the best interests of the Company for
the Company to obligate itself contractually to indemnify the
Indemnitees and advance expenses to the Indemnitees as provided
herein; and
WHEREAS, the Indemnitees are willing
to continue to serve the Company on the condition that they receive
the rights and benefits set forth in this Agreement.
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein and for certain
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS. For purposes
of this Agreement:
(a) “ Act ”
means the Illinois Business Corporation Act of 1983, as amended
from time to time.
(b) “ Expenses
” means attorneys’ fees and all other costs, retainers,
filing fees, court costs, transcript costs, fees of experts,
consultants, witness fees, travel expenses, duplicating costs,
excise taxes, printing and binding costs, telephone charges,
postage, delivery service fees, disbursements and expenses of any
nature whatsoever paid or incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in a Proceeding.
(c) “ Indemnified
Matters ” means, collectively, any action or inaction by
any Indemnitee (whether occurring before or after the execution of
this Agreement), or any other event or circumstance (whether
occurring before or after the execution of this Agreement),
relating to or arising out of or in connection with (i) the
activities or responsibilities of the Board in connection with the
Tresar Proposal, any Other Proposal or any Transaction or
(ii) the activities or responsibilities of the Special
Committee.
(d) “ Proceeding
” includes any claim, action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing
or any other proceeding whether civil, criminal, administrative or
investigative including any appeals.
SECTION 2. INDEMNIFICATION —
GENERAL. The Company shall indemnify and advance Expenses to each
Indemnitee as provided in this Agreement to the fullest extent
permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may hereafter from time to
time permit.
SECTION 3. PROCEEDINGS OTHER THAN
PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company shall
indemnify each Indemnitee in the event that such Indemnitee was or
is a party or is threatened to be made a party to any threatened,
pending or completed Proceeding (other than a Proceeding by or in
the right of the Company) relating to or arising out of or in
connection with any Indemnified Matter, against Expenses,
judgments, fines and amounts paid in settlement actually incurred
by such Indemnitee or on such Indemnitee’s behalf in
connection with such Proceeding or any claim, issue or matter
therein, if such Indemnitee acted in good faith and in a manner
such Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal
Proceeding, had no reasonable cause to believe that such
Indemnitee’s conduct was unlawful.
SECTION 4. PROCEEDINGS BY OR IN THE
RIGHT OF THE COMPANY. The Company shall indemnify each Indemnitee
in the event that such Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or
completed Proceeding by or in the right of the Company to procure a
judgment in its favor relating to or arising out of or in
connection with any Indemnified Matter, against Expenses actually
incurred by such Indemnitee or on such Indemnitee’s behalf in
connection with the defense or settlement of such Proceeding if
such Indemnitee acted in good faith and in a manner such Indemnitee
reasonably believed to be in or n
