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Exhibit 10.3
STOCKHOLDER’S
AGREEMENT
This Stockholder’s
Agreement (this “ Agreement ”) is made into and
entered into as of
[ ],
2008, by and among Global BPO Services Corp., a Delaware
corporation (the “ Company ”) and the persons
listed on the signature pages attached hereto (each a “
Stockholder ” and collectively, the “
Stockholders ”).
WHEREAS, on, June 2,
2008, the Company and the Stockholders entered into (i) a
Preferred Stock Purchase Agreement (the “ Stock Purchase
Agreement ”) pursuant to which the Stockholders purchased
an aggregate of 150,000 shares of Series A Convertible Preferred
Stock, par value $0.001 per share, of the Company (“
Preferred Stock ”), which is convertible into shares
of Common Stock, and (ii) a Registration Rights Agreement (the
“ Registration Rights Agreement ”) granting
certain registration rights;
WHEREAS, in connection with
the transactions contemplated by the Stock Purchase Agreement and
the Registration Rights Agreement, the Stockholders and the Company
have agreed to certain terms and conditions on their stock
ownership as set forth herein.
NOW, THEREFORE, in
consideration of the issuance of the Preferred Stock pursuant to
the Stock Purchase Agreement and the other promises contained
therein, and in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
DEFINITIONS; REPRESENTATIONS
AND WARRANTIES
Section 1.1
Definitions . Unless otherwise specified all references to
“days” shall be deemed to be references to calendar
days. For purposes of this Agreement, the following terms shall
have the following meanings:
“ Affiliate
” of a Person shall have the meaning set forth in Rule 12b-2
of the Exchange Act as in effect on the date of this Agreement, but
shall not include (i) any investment fund in which a Person
has invested if the Person (as the Affiliates alone or with others)
does not otherwise control the investment fund or have, directly or
indirectly, voting or dispositive power over any securities owned
by such fund or (ii) any investor or limited partner of any
Person who does not (alone or with others) otherwise have voting or
dispositive power over securities owned by that Person and is not
controlled by that Person. It is expressly intended that any Person
who now or hereafter controls, directly or indirectly, any
Stockholder shall be subject to the provisions of Articles 3 and 4
as if it were a Stockholder, including (without limitation) any
management company, advisory, and/or general partner of a
Stockholder.
“ Board of
Directors” shall mean the Board of Directors of the
Company.
“ Certificate of
Designations of Series A Convertible Preferred Stock”
shall mean the Certificate of Designations of Series A Convertible
Preferred Stock pursuant to which the Preferred Stock has been
created.
“ Common Stock
” shall mean the common stock, $0.001 par value per share, of
the Company.
“ Company
Subsidiary ” means any corporation, partnership, trust,
limited liability company or other non-corporate business
enterprise in which the Company (or another Company Subsidiary)
holds stock or other ownership interests representing (a) more
than 50% of the voting power of all outstanding stock or ownership
interests of such entity or (b) the right to receive more than
50% of the net assets of such entity available for distribution to
the holders of outstanding stock or ownership interests upon a
liquidation or dissolution of such entity.
“ Exchange Act
” shall mean the Securities Exchange Act of 1934, as
amended.
“ Group ”
shall mean a “ group ” as such term is used in
Section 13(d)(3) of the Exchange Act (as in effect, and based
on legal interpretations thereof existing, on the date
hereof).
“ Person ”
shall mean any individual, Group, corporation, general or limited
partnership, limited liability company, governmental entity, joint
venture, estate, trust, association, organization or other entity
of any kind or nature.
“ Offer ”
means a written notice of any proposed or intended issuance, sale
or exchange of Offered Securities containing the information
specified in Section 3.1(a).
“ Offered
Securities ” means (a) any shares of its Common
Stock, (b) any other equity securities of the Company,
including, without limitation, shares of preferred stock,
(c) any option, warrant or other right to subscribe for,
purchase or otherwise acquire any equity securities of the Company,
or (d) any debt securities convertible into capital stock of
the Company.
“ Proportionate
Amount ” means, with respect to a Qualified Stockholder,
its pro rata portion of the Offered Securities determined by
multiplying the number of Offered Securities by a fraction, the
numerator of which is the aggregate number of shares of Common
Stock issuable upon conversion of all shares of Preferred Stock
then held and any Common Stock then owned by such Qualified
Stockholder and the number of shares of Common Stock issuable on
exercise or conversion of any securities convertible into or
exercisable for shares of Common Stock, including, without
limitation, warrants, and the denominator of which is the total
number of shares of Common Stock then outstanding (treating as
outstanding for this purpose all shares of Common Stock then
issuable upon exercise or conversion of all outstanding securities
convertible into or exercisable for shares of Common Stock,
including, without limitation, warrants).
“ Qualified
Stockholder ” means a Stockholder that is an
“accredited investor” within the meaning of Rule 501(a)
under the Securities Act.
“ Related Person
” means, with respect to any Person, (i) any Affiliate
of such Person, (ii) any investment manager, investment
advisor or partner of such Person or an Affiliate of such Person or
such investment manager, investment advisor or partner,
(iii) any investment fund, investment account or investment
entity whose investment manager, investment advisor or general
partner is such Person or a Related Person of such Person, and
(iv) to the extent not covered by the foregoing, as to any
Stockholder, a partner, employee, director, officer, affiliate or
associate (as defined in Rule 12b-2 under the Exchange Act) of any
of the Stockholders or any Affiliate of any of the Stockholders or
as to which any Stockholder or any of its Affiliates own at least
ten percent of the voting equity securities.
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“ Securities Act
” shall mean the Securities Act of 1933, as
amended.
Section 1.2
Representations and Warranties of the Company and
Stockholders . The representations and warranties of the
Company and Stockholders, respectively, with respect to this
Agreement and the transactions contemplated hereby are set forth in
the Stock Purchase Agreement.
ARTICLE 2
BOARD REPRESENTATION AND
TRANSACTIONAL APPROVALS
Section 2.1 Board
Matters .
(a) Pursuant to the
Certificate of Designations of Series A Convertible Preferred Stock
creating the Preferred Stock, the Stockholders are entitled to
elect up to three directors in certain circumstances (the “
Stockholder Designees, ” whether one or more ) and for
the period specified therein (the “ Stockholder Designee
Period ”). The Company agrees to take such actions as may
be necessary or appropriate to permit such election to be made to
the extent provided in the Certificate of Designations of Series A
Convertible Preferred Stock, subject to the provisions set forth in
this Section 2.1. Upon termination of the Stockholder Designee
Period, the terms of the Stockholder Designees as directors will
cease and each of the Stockholders shall cause the Stockholder
Designees to offer to resign immediately from any committees
thereof, whether as observer or otherwise, (which offer to resign
may be accepted or declined in the sole and absolute discretion of
the Board of Directors) and the Company’s obligations under
this Section 2.1 shall terminate.
Notwithstanding the
provisions of this Section 2.1(a) or Certificate of
Designations of Series A Convertible Preferred Stock, the
Stockholders agree that:
(i) Stockholders holding a
majority of the shares of Preferred Stock then held by all
Stockholders (the “Majority Stockholders”) will provide
the Company with such information concerning the background of such
Stockholder Designees as the Nominating Committee of the Board of
Directors may reasonably request;
(ii) subject to
(iii) below, the Majority Stockholders will elect
initially [ ] and
[ ]
as the Class I and Class II Stockholder Designees, respectively,
and
[ ]
as the Class III Stockholder Designee, if applicable, as determined
in the Certificate of Designations of Series A Convertible
Preferred Stock;
(iii) the Majority
Stockholders will not elect (and agree to withdraw the nomination
of or cause the removal of) any Person to the Company’s Board
of Directors if the Nominating Committee of the Board of Directors
determines in good faith that the proposed Stockholder Designee
does not meet the qualification requirements imposed with respect
to other directors or determines that a proposed Stockholder
Designee would not be qualified under any applicable law, rule or
regulation (including under any exchange rules) to serve as a
director of the Company or if the Company objects to a
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Stockholder Designee because
such Stockholder Designee has been involved in any of the events
enumerated in Item 2(d) or (e) of Schedule 13D or such
Person is currently the target of an investigation by any
governmental authority or agency relating to felonious criminal
activity or is subject to any order, decree, or judgment of any
court or agency prohibiting service as a director of any public
company or providing investment or financial advisory services. In
such an event, the Stockholder shall withdraw the designation of
such proposed Stockholder Designee and designate a replacement
therefor (which replacement Stockholder Designee shall also be
subject to the requirements of this Section). The Company shall use
its reasonable best efforts to notify the Stockholders of any
objection to a Stockholder Designee sufficiently in advance of the
date on which proxy materials are mailed by the Company in
connection with such election of directors to enable the
Stockholders to propose a replacement Stockholder Designee in
accordance with the terms of this Agreement.
(b) The parties intend that
the Company’s securities continue to meet the qualification
requirements applicable to the American Stock Exchange. The Board
of Directors will be comprised according to such
requirements.
(c) Each Stockholder Designee
serving on the Board of Directors shall be entitled to all
directors fees, insurance, indemnification, compensation and equity
incentives granted to directors who are not employees of the
Company on the same terms provided to, and subject to the same
limitations applicable to, such directors.
(d) At any time that the
composition of the board of managers or board of directors of any
subsidiary of the Company (a “ Sub Board ”) is
not identical to the composition of the Board, the Stockholder
shall have the right to a proportional number of board seats on
such Sub Board as the Stockholder has on the Board of
Directors.
(e) The Company shall use its
best efforts to ensure that one of the Stockholder Designees is
appointed to each committee of the Board of Directors, and each
committee of any Sub Board, other than (i) a special committee
appointed to consider any matter involving the Stockholder or its
Related Persons and (ii) where each of the Stockholder
Designees is not permitted to serve as a result of any law,
regulation or rule of a securities exchange. If all of the
Stockholder Designees are disqualified from serving on a committee
pursuant to (ii) above, the Company will use its best efforts
to ensure that one of the Stockholder Designees is appointed as an
observer to any such committee. The observer will not be a member
of such committee or entitled to vote on any matter acted upon, but
will be entitled to all notices of and to attend and participate in
meetings thereof, subject to the power of the committee chair to
conduct executive sessions of only the full members of the
committee.
Section 2.2
Management of the Business . Following the Closing (as
defined in the Stock Purchase Agreement) and except as provided in
this Agreement, management of the Company will continue to have
full authority to o
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