EXHIBIT 10.1
STREAM GLOBAL SERVICES,
INC.
INDEMNIFICATION
AGREEMENT
This Agreement is made as of the
day of
, 2008, by and between Stream Global Services, Inc., a Delaware
corporation (the “Corporation”), and
(the “Indemnitee”), a director or officer of the
Corporation.
WHEREAS, it is essential to the
Corporation to retain and attract as directors and officers the
most capable persons available, and
WHEREAS, the increase in corporate
litigation subjects directors and officers to expensive litigation
risks, and
WHEREAS, it is now and has always
been the policy of the Corporation to indemnify its directors and
officers, and
WHEREAS, the Corporation desires the
Indemnitee to serve, or continue to serve, as a director or officer
of the Corporation.
NOW THEREFORE, the Corporation and
the Indemnitee do hereby agree as follows:
1. Definitions . As used in
this Agreement:
(a) The term
“Proceeding” shall include any threatened, pending or
completed action, suit, arbitration, alternative dispute resolution
proceeding, administrative hearing or other proceeding, whether
brought by or in the right of the Corporation or otherwise and
whether of a civil, criminal, administrative or investigative
nature, and any appeal therefrom.
(b) The term “Corporate
Status” shall mean the status of a person who is or was, or
has agreed to become, a director or officer of the Corporation, or
is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer, fiduciary, partner, trustee,
member, employee or agent of, or in a similar capacity with,
another corporation, partnership, joint venture, trust, limited
liability company or other enterprise.
(c) The term “Expenses”
shall include, without limitation, attorneys’ fees,
retainers, court costs, transcript costs, fees and expenses of
experts, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and other
disbursements or expenses of the types customarily incurred in
connection with investigations, judicial or administrative
proceedings or appeals, but shall not include the amount of
judgments, fines or penalties against Indemnitee or amounts paid in
settlement in connection with such matters.
(d) The term “Change in
Control” shall mean the occurrence of any one of the
following:
(i) individuals who, on the date of
this Agreement, constitute the Board (the “Incumbent
Directors”) cease for any reason to constitute at least a
majority of the
Board, provided that any person becoming a
director subsequent to the date of this Agreement whose election or
nomination for election was approved by a vote of at least a
majority of the Directors then on the Board (either by a specific
vote or by approval of the proxy statement of the Corporation in
which such person is named as a nominee for director, without
written objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual initially elected
or nominated as a director of the Corporation as a result of an
actual or threatened election contest with respect to directors or
as a result of any other actual or threatened solicitation of
proxies by or on behalf of any person other than the Board shall be
deemed to be an Incumbent Director;
(ii) any “person” (as
such term is defined in the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a
“beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Corporation representing 50% or more of the combined voting power
of the Corporation’s then outstanding securities eligible to
vote for the election of the Board (the “Corporation Voting
Securities”); provided, however, that the event described in
this paragraph (ii) shall not be deemed to be a Change in
Control by virtue of any of the following acquisitions: (A) by
the Corporation or any subsidiary, (B) by any employee benefit
plan (or related trust) sponsored or maintained by the Corporation
or any subsidiary, (C) by any underwriter temporarily holding
securities pursuant to an offering of such securities,
(D) pursuant to a Non-Qualifying Transaction, as defined in
paragraph (iii), or (E) by any person of Voting Securities
from the Corporation, if a majority of the Incumbent Board approves
in advance the acquisition of beneficial ownership of 50% or more
of Corporation Voting Securities by such person;
(iii) the consummation of a merger,
consolidation, statutory share exchange, reorganization or similar
form of corporate transaction involving the Corporation or any of
its subsidiaries that requires the approval of the
Corporation’s stockholders, whether for such transaction or
the issuance of securities in the transaction (a “Business
Combination”), unless immediately following such Business
Combination: (A) more than 50% of the total voting power of
(x) the corporation resulting from such Business Combination
(the “Surviving Corporation”), or (y) if
applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of 100% of the voting
securities eligible to elect directors of the Surviving Corporation
(the “Parent Corporation”), is represented by
Corporation Voting Securities that were outstanding immediately
prior to such Business Combination (or, if applicable, is
represented by shares into which such Corporation Voting Securities
were converted pursuant to such Business Combination), and such
voting power among the holders thereof is in substantially the same
proportion as the voting power of such Corporation Voting
Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee
benefit plan (or related trust) sponsored or maintained by the
Surviving Corporation or the Parent Corporation), is or becomes the
beneficial owner, directly or indirectly, of 35% or more of the
total voting power of the outstanding voting securities eligible to
elect directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) and (C) at
least half of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination
were Incumbent Directors at the time of the Board’s approval
of the execution of the initial agreement providing for such
Business Combination (any Business Combination which satisfies all
of the criteria specified in (A), (B) and (C) above shall
be deemed to be a “Non-Qualifying
Transaction”);
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(iv) the stockholders of the
Corporation approve a plan of complete liquidation or dissolution
of the Corporation;
(v) the consummation of a sale of
all or substantially all of the Corporation’s assets;
or
(vi) the occurrence of any other
event that the Board determines by a duly approved resolution
constitutes a Change in Control.
(e) The term “Independent
Counsel” shall mean a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither
currently is, nor in the past five years has been, retained to
represent: (i) the Corporation or the Indemnitee in any matter
material to either such party or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Corporation
or the Indemnitee in an action to determine the Indemnitee’s
rights under this Agreement.
(f) References to “other
enterprise” shall include employee benefit plans; references
to “fines” shall include any excise tax assessed with
respect to any employee benefit plan; references to “serving
at the request of the Corporation” shall include any service
as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the
interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not
opposed to the best interests of the Corporation” as referred
to in this Agreement.
2. Indemnity of Indemnitee .
Subject to Sections 5, 6 and 8, the Corporation shall indemnify the
Indemnitee in connection with any Proceeding as to which the
Indemnitee is, was or is threatened to be made a party (or is
otherwise involved) by reason of the Indemnitee’s Corporate
Status, to the fullest extent permitted by law (as such may be
amended from time to time). In furtherance of the foregoing and
without limiting the generality thereof:
(a) Indemnification in
Third-Party Proceedings . The Corporation shall indemnify the
Indemnitee in accordance with the provisions of this
Section 2(a) if the Indemnitee was or is a party to or
threatened to be made a party to or otherwise involved in any
Proceeding (other than a Proceeding by or in the right of the
Corporation to procure a judgment in its favor or a Proceeding
referred to in Section 5 below) by reason of the
Indemnitee’s Corporate Status or by reason of any action
alleged to have been taken or omitted in connection therewith,
against all Expenses, judgments, fines, penalties and amounts paid
in settlement actually and reasonably incurred by or on behalf of
the Indemnitee in connection with such Proceeding, if the
Indemnitee acted in good faith and in a manner which the Indemnitee
reasonably believed to be in, or not opposed to, the best interests
of the Corporation and, with respect to any criminal Proceeding,
had no reasonable cause to believe that his or her conduct was
unlawful.
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(b) Indemnification in
Proceedings by or in the Right of the Corporation . The
Corporation shall indemnify the Indemnitee in accordance with the
provisions of this Section 2(b) if the Indemnitee was or is a
party to or threatened to be made a party to or otherwise involved
in any Proceeding by or in the right of the Corporation to procure
a judgment in its favor by reason of the Indemnitee’s
Corporate Status or by reason of any action alleged to have been
taken or omitted in connection therewith, against all Expenses and,
to the extent permitted by law, amounts paid in settlement actually
and reasonably incurred by or on behalf of the Indemnitee in
connection with such Proceeding, if the Indemnitee acted in good
faith and in a manner which the Indemnitee reasonably believed to
be in, or not opposed to, the best interests of the Corporation,
except that, if applicable law so requires, no indemnification
shall be made under this Section 2(b) in respect of any claim,
issue or matter as to which the Indemnitee shall have been adjudged
to be liable to the Corporation, unless, and only to the extent,
that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of such liability but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses as the Court of Chancery or
such other court shall deem proper.
3. Indemnification of Expenses of
Successful Party . Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful,
on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein (other than a
Proceeding referred to in Section 5), the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
by or on behalf of the Indemnitee in connection
therewith.
4. Indemnification for Expenses
of a Witness . To the extent that the Indemnitee is, by reason
of the Indemnitee’s Corporate Status, a witness in any
Proceeding to which the Indemnitee is not a party, the Indemnitee
shall be indemnified against all Expenses actually and reasonably
incurred by or on behalf of the Indemnitee in connection
therewith.
5. Exceptions to Right of
Indemnification . Notwithstanding anything to the contrary to
this Agreement, except as set forth in Section 9,
(a) the Corporation shall not
indemnify the Indemnitee under this Agreement in connection with a
Proceeding (or part thereof) initiated by the Indemnitee unless
(i) the initiation thereof was approved by the Board of
Directors of the Corporation or (ii) the Proceeding was
commenced following a Change in Control; and
(b) the Corporation shall not
indemnify the Indemnitee to the extent the Indemnitee is reimbursed
from the proceeds of insurance, and in the event the Corporation
makes any indemnification payments to the Indemnitee and the
Indemnitee is subsequently reimbursed from the proceeds of
insurance, the Indemnitee shall promptly refund such
indemnification payments to the Corporation to the extent of such
insurance reimbursement.
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6. Notification and Defense of
Claim .
(a) The Indemnitee shall notify the
Corporation in writing as soon as practicable of any Proceeding for
which indemnity will or could be sought. The failure to so notify
the Corporation will not relieve the Corporation from any liability
that it may have to Indemnitee (i) except to the extent the
failure adversely affects the Corporation’s rights, legal
position, ability to defend or ability to obtain insurance coverage
with respect to such proceeding or (ii) otherwise than under
the Corporation’s Certificate
