EMPLOYMENT AGREEMENT
Exhibit 10.78
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into effective as of January 5, 2007
by and between StarTek, Inc., a Delaware corporation (the “Company”), and A. Xxxxxxxx Xxxxx, a
resident of Colorado (“Executive”).
RECITALS
A. The Company is a provider of business process outsourced services, which consist of
business process management and supply chain management services.
B. Executive is an experienced business manager.
C. Executive is currently an a member of the Board of Directors of the Company (the “Board),
and wishes to become employed as full-time President and Chief Executive Officer of the Company.
D. The Company desires to employ Executive and Executive wishes to provide his services to the
Company, subject to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the respective agreements of
the Company and Executive set forth below, the Company and Executive, intending to be legally
bound, agree as follows:
1. Employment. Subject to all terms and conditions hereof, effective January 5, 2007
the Company shall employ Executive, and Executive shall accept such of employment and perform
services for the Company and Affiliates (as defined in Section 13) in the capacities as requested
by the Board as provided in this Agreement.
2. Term of Employment. Executive’s employment with the Company shall be at-will.
Either Executive or the Company may terminate his employment at any time, for any reason.
3. Position and Duties.
(a) Position with the Company. During Executive’s employment with the Company
hereunder, Executive shall serve as President and Chief Executive Officer of the Company and shall
report to the Board. As President and Chief Executive Officer, Executive shall have primary
management responsibility for the Company; shall have all duties and powers customarily associated
with the office of President and Chief Executive Officer of a significant business enterprise;
shall ensure an orderly transition to a new leadership; shall review, revise (as appropriate), and
execute the Company’s business plan; shall develop and execute a growth plan for the Company; and
shall perform such responsibilities as the Board may assign to him from time to time consistent
with his position. Executive shall perform such responsibilities for Affiliates as the Board may
assign from time to time.
(b) Board of Directors. While Executive is employed by the Company as President and
Chief Executive Officer, Executive shall continue to serve on the Board until his term expires,
subject to re-election or removal as provided by applicable law. Executive’s service on the Board
shall be without additional compensation.
(c) Performance of Duties and Responsibilities. While Executive is employed by the
Company hereunder, Executive shall serve the Company and its Affiliates faithfully and to the best
of his ability and shall devote his full time, attention and efforts to the business of the Company
and its Affiliates. Executive shall not accept other employment or engage in other material
business activity, except as approved in writing by the Board, but may participate in charitable
and personal investment activities, so long as such activities do not interfere with the
performance of his duties and responsibilities hereunder. Notwithstanding the foregoing, Executive
may serve on the board of directors of Work Options Group and one other company so long as these
companies do not compete with the Company or its Affiliates and so long as Executive’s obligations
to these companies do not materially interfere with Executive’s fulfillment of his obligations to
the Company. Executive hereby represents and confirms that he is under no contractual or legal
commitments that would prevent him from fulfilling his duties and responsibilities as set forth in
this Agreement.
(d) Place of Employment. Executive’s primary place of employment with the Company
shall be at the Company’s headquarters located in Denver, Colorado, and Executive shall perform his
duties primarily from such location subject to business travel in the ordinary course of
Executive’s performance of his duties and responsibilities as may reasonably be required.
4. Compensation.
(a) Base Salary. While Executive is employed by the Company hereunder, the Company
shall pay to Executive an annual base salary of $450,000, less deductions and withholdings, which
base salary shall be paid in accordance with the Company’s normal payroll policies and procedures.
Commencing after Executive’s first full fiscal year of employment with the Company, the Board or
the Compensation Committee of the Board (the “Compensation Committee”) shall review and may
increase Executive’s base salary in its sole discretion; provided, however, that the Company may
reduce Executive’s base salary only if (i) such reduction is part of a general, pro-rata reduction
in the base salaries of all executives of the Company implemented by the Board as a result of
financial problems experienced by the Company, and (ii) Executive’s base salary is returned to its
unreduced level on a prospective basis commencing upon the cessation of such financial problems, as
determined by the Board. At least once a year, the Board or the Compensation Committee shall
conduct an annual performance review of Executive and will undertake to review the
level of salary paid to Executive based upon the results of such annual performance review and in
comparison to the overall market for a company of like size and stature.
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(b) Annual Incentive Bonus. For each full fiscal year Executive is employed by the
Company hereunder, Executive shall be eligible for an annual incentive bonus for such fiscal year
of up to 125% of his then current annual base salary, subject to achievement of performance
criteria and satisfaction of terms established by the Compensation Committee after consultation with Executive. The criteria for fiscal year 2007 will be set on or before
February 15, 2007. The annual incentive bonuses will be paid according to the following schedule,
except that for fiscal year 2007, the bonus shall not be less than 50% of annual base salary if
Executive is still employed by the Company as of December 31, 2007. Any annual incentive bonus
shall be paid to Executive at the same time as incentive awards for such fiscal year are paid to
other executives of the Company, subject to any delay required by Section 409A of the Internal
Revenue Code to avoid adverse tax consequences.
| Performance vs. Criteria | Payout (% of Base Salary) | Example: Payout at $450K Base | ||
| Below 80% | 0% | $0 | ||
| At or above 80% | 50% | $225,000 | ||
| At or above 90% | 75% | $337,500 | ||
| At or above 100% | 100% | $450,000 | ||
| At or above 110% | 110% | $495,000 | ||
| At or above 120% | 120% | $540,000 | ||
| At or above 125% | 125% | $562,500 |
(c) Stock Options. Within sixty (60) days of their execution of this Agreement, the
Company and Executive shall enter into the Stock Option Agreement that is attached hereto as
Exhibit A.
(d) Restricted Stock. Contemporaneously with their execution of this Agreement, the
Company and Executive shall enter into the Restricted Stock Agreement that is attached hereto as
Exhibit B.
(e) Employee Benefits. While Executive is employed by the Company hereunder,
Executive shall be entitled to participate in all such employee benefit plans and programs of the
Company as are provided from time to time by the Company or its subsidiaries to senior executives
of the Company, to the extent that Executive meets the eligibility requirements for each individual
plan or program. The Company provides no assurance as to the adoption or continuance of any
particular employee benefit plan or program, and Executive’s participation in any such plan or
program shall be subject to the provisions, rules and regulations applicable thereto. To the
extent permitted by the Company’s group health plan, Executive may at his option waive coverage for
himself and his dependents under the Company’s group health plan and in lieu of that coverage
receive a payment to his health savings account in the amount of the Company’s share of the costs
for the coverage that he waived.
(f) Expenses. While Executive is employed by the Company hereunder, the Company shall
reimburse Executive for all out-of-pocket business, travel and entertainment expenses incurred by
Executive in the performance of the duties and responsibilities hereunder, subject to the Company’s
normal policies and procedures for expense verification and documentation.
(g) Vacation. While Executive is employed by the Company hereunder, Executive shall
receive not less than four (4) weeks per year of paid vacation in
accordance with the Company’s policies for executives, to be taken at such times so as not to
disrupt the operations of the Company.
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(h) Car Allowance. While Executive is employed by the Company hereunder, Executive
shall receive a car allowance of $1,200 per month.
5. Confidential Information.
(a) During Executive’s employment with the Company or any Affiliates and for the Restrictive
Period (as defined below), except as permitted by the Board, Executive shall not at any time
divulge, furnish or make accessible to anyone or use in any way other than in the ordinary course
of the business of the Company or its Affiliates, any confidential, proprietary or secret knowledge
or information of the Company or its Affiliates that Executive has acquired or shall acquire about
the Company or its Affiliates, whether developed by himself or by others, concerning (i) any trade
secrets, (ii) any confidential, proprietary or secret designs, programs, processes, formulae,
plans, devices or material (whether or not patented or patentable) directly or indirectly useful in
any aspect of the business of the Company or of its Affiliates, (iii) any customer or supplier
lists, (iv) any confidential, proprietary or secret development or research work, (v) any strategic
or other business, marketing or sales plans, (vi) any financial data or plans, or (viii) any other
confidential or proprietary information or secret aspects of the business of the Company or of its
Affiliates. Executive acknowledges that the above-described knowledge and information constitutes
a unique and valuable asset of the Company and represents a substantial investment of time and
expense by the Company, and that any disclosure or other use of such knowledge or information other
than for the sole benefit of the Company or its Affiliates would be wrongful and would cause
irreparable harm to the Company. Executive shall refrain from intentionally committing, and will
take reasonable steps to avoid, any acts that would materially reduce the value of such knowledge
or information to the Company or its Affiliates. The foregoing obligations of confidentiality
shall not apply to any knowledge or information that (i) is now or subsequently becomes generally
publicly known, other than as a direct or indirect result of the breach of Executive’s fiduciary
duties to the Company, (ii) is independently made available to Executive in good faith by a third
party who has not violated a confidential relationship with the Company or its Affiliates, or (iii)
is required to be disclosed by law or legal process. Executive understands and agrees that his
obligations under this Agreement to maintain the confidentiality of the Company’s confidential
information are in addition to any obligations of Executive under applicable statutory or common
law.
(b) For purposes of this Agreement, “Restrictive Period” shall mean: (A) 12 consecutive
months from and after the date of termination of Executive’s employment if Executive’s employment
is terminated for a reason other than a reason set forth in Section 10(a) below, and (B) 18
consecutive months from and after the date of termination of Executive’s employment if Executive’s
employment is terminated for a reason set forth in Section 10(a) below.
6. Ventures. If, during Executive’s employment with the Company, Executive is engaged
in or provides input into the planning or implementing of any project, program or venture involving
the Company, all rights in such project, program or venture shall belong to the Company. Except as
approved in writing by the Board, Executive shall not be
entitled to any interest in any such project, program or venture or to any commission,
finder’s fee or other compensation in connection therewith. Executive shall have no interest,
direct or indirect, in any customer or supplier that conducts business with the Company.
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7. Noncompetition and Nonsolicitation Covenants.
(a) Agreement Not to Compete. During Executive’s employment with the Company or any
Affiliates and for the Restrictive Period, whether such termination is with or without Cause, or
whether such termination is initiated by Executive or the Company, Executive shall not, without the
express written authorization of the Board, directly or indirectly (including without limitation as
a proprietor, owner, principal, agent, partner, officer, director, stockholder, employee, member,
consultant or otherwise) in North America or any other location in which the Company is then doing
business, including Canada, provide services for or hold any interest in any person or entity
engaged in or planning to enter into the business of business process outsourced services, which
may consist of business process management services (including without limitation provisioning
management, wireless telephone number porting, receivables management, wireless telephone
activations, and high-end technical support and customer care services) (collectively, the
“Business”); provided, however, that the Business does not include any business that the Company is
not engaged in or planning to engage in as of the date of the termination of Executive’s
employment. Ownership by Executive, as a passive investment, of less than 1.0% of the outstanding
shares of capital stock of any corporation listed on a national securities exchange or publicly
traded on NASDAQ will not itself constitute a breach of this Section 7.
(b) Agreement Not to Hire. During Executive’s employment with the Company or any
Affiliates and for the Restrictive Period, whether such termination is with or without Cause, or
whether such termination is initiated by Executive or the Company, Executive shall not, directly or
indirectly, in any manner or capacity (including without limitation as a proprietor, owner,
principal, agent, partner, officer, director, stockholder, employee, member, consultant or
otherwise) hire, engage or solicit any person who is then an employee or contractor of the Company.
(c) Agreement Not to Solicit. During Executive’s employment with the Company or any
Affiliates and for the Restrictive Period, whether such termination is with or without Cause, or
whether such termination is initiated by Executive or the Company, Executive shall not, directly or
indirectly in any manner or capacity (including without limitation as a proprietor, owner,
principal, agent, partner, officer, director, stockholder, employee, member, consultant or
otherwise) solicit, request, advise or induce any then current customer, supplier or other business
contact of the Company to cancel, curtail or otherwise adversely change its relationship with the
Company.
(d) Acknowledgment. Executive hereby acknowledges that the provisions of this Section
7 are reasonable and necessary to protect the legitimate interests of the Company, including but
not limited to the Company’s trade secrets, confidential information, substantial relationships
with existing or prospective customers, or customer goodwill. Executive hereby acknowledges that
any violation of this Section 7 by Executive shall cause substantial and irreparable harm to the
Company to such an extent that monetary damages alone
would be an inadequate remedy therefor. Therefore, in the event that Executive violates any
provision of this Section 7, the Company shall be entitled to an injunction, in addition to all the
other remedies it may have, restraining Executive from violating or continuing to violate such
provision.
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(e) Blue Pencil Doctrine. If the duration of, the scope of or any business activity
covered by any provision of this Section 7 is in excess of what is determined to be valid and
enforceable under applicable law, such provision shall be construed to cover only that duration,
scope or activity that is determined to be valid and enforceable. Executive hereby acknowledges
that this Section 7 shall be given the construction that renders its provisions valid and
enforceable to the maximum extent, not exceeding its express terms, possible under applicable law.
8. Patents, Copyrights and Related Matters.
(a) Disclosure and Assignment. Executive shall immediately disclose to the Company
any and all improvements and inventions that Executive may conceive and/or reduce to practice
individually or jointly or commonly with others while he is employed with the Company or any of its
Affiliates with respect to (i) any methods, processes or apparatus concerned with the development,
use or production of any type of products, goods or services sold or used by the Company or its
Affiliates, and (ii) any type of products, goods or services sold or used by the Company or its
Affiliates. Any such improvements and inventions shall be the sole and exclusive property of the
Company and executive shall immediately assign, transfer and set over to the Company his entire
right, title and interest in and to any and all of such improvements and inventions as are
specified in this Section 8(a), and in and to any and all applications for letters patent that may
be filed on such inventions, and in and to any and all letters patent that may issue, or be issued,
upon such applications. In connection therewith and for no additional compensation therefor, but
at no expense to Executive, Executive shall sign any and all instruments deemed necessary by the
Company for:
| (i) | the filing and prosecution of any
applications for letters patent of the United States or of any
foreign country that the Company may desire to file upon such
inventions as are specified in this Section 8(a); |
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| (ii) | the filing and prosecution of any
divisional, continuation, continuation-in-part or reissue
applications that the Company may desire to file upon such
applications for letters patent; and |
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| (iii) | the reviving, re-examining or
renewing of any of such applications for letters patent. |
This Section 8(a) shall not apply to any invention for which no equipment, supplies, facilities,
confidential, proprietary or secret knowledge or information, or other trade secret information of
the Company was used and that was developed entirely on Executive’s own time, and (i) that does not
relate (A) directly to the business of the Company, or (B) to the Company’s actual or
demonstrably anticipated research or development, or (ii) that does not result from any work
performed by Executive for the Company.
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(b) Copyrightable Material. All right, title and interest in all copyrightable
material that Executive shall conceive or originate individually or jointly or commonly with
others, and that arise in connection with Executive’s services hereunder or knowledge of
confidential and proprietary information of the Company or its Affiliates, shall be the property of
the Company and are hereby assigned by Executive to the Company, along with ownership of any and
all copyrights in the copyrightable material. Where applicable, works of authorship created by
Executive relating to the Company or its Affiliates and arising out of Executive’s knowledge of
confidential and proprietary information of the Company shall be considered “works made for hire,”
as defined in the U.S. Copyright Act, as amended.
9. Termination of Employment.
(a) The Executive’s employment with the Company shall terminate immediately upon:
| (i) | Executive’s receipt of written
notice from the Company of the termination of his employment,
effective as of the date indicated in such notice, which notice
may be given at any time for any reason; |
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| (ii) | Executive’s abandonment of his
employment or his resignation; |
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| (iii) | Executive’s Disability (as
defined below); or |
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| (iv) | Executive’s death. |
(b) The date upon which Executive’s termination of employment with the Company occurs shall be
the “Termination Date.”
(c) Upon termination of Executive’s employment with the Company for any reason, Executive
shall resign from all positions held as officer or director of the Company or its Affiliates
effective on the Termination Date.
(d) “Disability” hereunder shall mean, subject to applicable leave laws, the inability of
Executive to perform on a full-time basis the duties and responsibilities of his employment with
the Company by reason of his illness or other physical or mental impairment or condition if such
inability continues for an uninterrupted period of 180 days or more during any 365-day period. A
period of inability shall be “uninterrupted” unless and until Executive returns to full-time work
for a continuous period of at least 30 days.
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10. Payments upon Termination of Employment.
(a) If Executive’s employment with the Company is terminated by the Company without Cause or
Executive resigns for Good Reason, the Company shall, in addition
to paying Executive his then current base salary earned through the Termination Date and
subject to the conditions set forth in Section 10(g):
| (i) | pay to Executive as severance pay
a lump sum in an amount equal to 150% of his then current annual
base salary; |
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| (ii) | (A) if Executive elects to
continue for himself and his eligible dependents health
insurance coverage following the Termination Date, pay the
employer’s share of such coverage, at the same level of coverage
that was in effect as of the Termination Date, for a period of
18 consecutive months after the Termination Date; or (B) if as
of the Termination Date, Executive has, pursuant to the last
sentence of Section 4(e) above, waived coverage for himself and
his dependents under the Company’s group health plan, pay to
Executive the employer’s share of the premiums for the coverage
that he waived for 18 consecutive months after the Termination
Date or until Executive has become eligible for health coverage
through another employer, which ever occurs first; and |
||
| (iii) | pay to Executive a bonus equal
to 150% of Executive’s then current annual base salary. |
(b) Any amount payable to Executive or for the benefit of Executive and his eligible
dependents shall be subject to applicable deductions and withholdings. Payments pursuant to
Sections 10(a)(i) or 10(a)(iii) shall be paid to the Company on the first normal payroll date of
the Company following the expiration of the applicable rescission period provided by law and the
expiration of any six-month delay that is required (but only to the extent required) by Section
409A of the Internal Revenue Code to avoid adverse tax consequences.
(c) If Executive’s employment with the Company is terminated for any reason not set forth in
Section 10(a) above, the Company shall pay to Executive or his beneficiary or his estate, as the
case may be, his then current base salary earned by Executive through the Termination Date.
(d) “Cause” hereunder shall mean:
| (i) | any dishonest or fraudulent
statement or act of Executive with respect to the Company or any
Affiliate; |
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| (ii) | Executive’s conviction of, or
entry of a plea of guilty or nolo contendere to, any crime that
constitutes a felony or any misdemeanor (excluding minor traffic
violations) involving moral turpitude, deceit, dishonesty or
fraud; |
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| (iii) | gross negligence, willful
misconduct or intentional insubordination of Executive with
respect to the Company or any Affiliate; |
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| (iv) | a material breach by Executive of
any agreement to which Executive and the Company are now or
hereafter parties, which breach has not been cured by Executive
within 30 days after the Company gives written notice to
Executive pursuant to Section 13(i) below specifying with
reasonable detail the reason that the Company believes that a
material breach has occurred; or |
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| (v) | Executive’s failure, on or after
January 5, 2009, to own at least (A) 30,000 shares of the common
stock of the Company or (B) shares of the common stock of the
Company having a total market value of at least $300,000 as
measured by the closing price on the New York Stock Exchange. |
(e) “Good Reason” hereunder shall mean:
| (i) | without the consent of Executive,
the assignment of Executive to duties substantially inconsistent
with his position, duties, or responsibility of a CEO, excluding
for this purpose an action not taken in bad faith and which is
remedied by the Company within 30 days after Executive gives
notice thereof pursuant to Section 13(i) below; |
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| (ii) | a reduction in Executive’s base
salary except for across-the-board salary reductions as a part
of a general, pro-rata reduction in the base salaries of all
executives of the Company implemented by the Board as a result
of financial problems experienced by the Company; |
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| (iii) | without the consent of
Executive, Executive’s being required by the Company to relocate
his primary residence to a location more than 35 miles from
Boulder, Colorado; or |
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| (iv) | any material breach by the
Company of this Agreement not caused by Executive, which breach
has not been cured by the Company within 30 days after Executive
gives written notice to the Company pursuant to Section 13(i)
below specifying with reasonable detail the reasons that
Executive believes a material breach has occurred. |
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(f) In the event of termination of Executive’s employment, the sole obligation of the Company
hereunder shall be its obligation to make the payments called for by Sections 10(a) or 10(c)
hereof, as the case may be, and the Company shall have no other obligation to Executive or to his
beneficiary or his estate, except as (i) otherwise provided by law, (ii) under the terms of any
other applicable written agreement between Executive and the Company (including, but not limited
to, the Stock Option Agreement, the Restricted Stock Agreement, and any applicable indemnification
agreement), or (iii) under the terms of any employee benefit plans or programs then maintained by
the Company in which Executive participates.
(g) Notwithstanding the foregoing provisions of this Section 10, the Company shall not be
obligated to make any payments to or for the benefit of Executive and his eligible dependents under
Sections 10(a)(i)-(iii) hereof unless: (i) Executive shall, if reasonably requested by the Board,
remain employed by the Company for a transition period and complete such transitional duties as the
Board may assign; (ii) Executive shall have signed a release of claims in favor of the Company and
its Affiliates substantially in the form attached hereto as Exhibit C, and all applicable
consideration and rescission periods provided by law and any six month delay required by Section
409A of the Internal Revenue Code to avoid adverse tax consequences shall have expired; (iii) (if
so requested by Company) Executive shall have resigned from all positions held as officer or
director of the Company or its Affiliates; and (iv) Executive is in material compliance with the
terms of this Agreement that survive the termination of Executive’s employment as of the dates of
such payments. Notwithstanding the foregoing, nothing in this Section 10(g) will be interpreted to
limit in any manner the good faith exercise of fiduciary responsibilities of any person as an
officer or director of the Company, or to prohibit any person from cooperating with any civil or
criminal investigation or giving truthful information in response to a valid subpoena or court
order.
11. Return of Records and Property. Upon termination of Executive’s employment or at
any time upon the Company’s request, Executive shall promptly deliver to the Company any and all
Company and Affiliate records and any and all Company and Affiliate property in his possession or
under his control, including without limitation manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes,
data, tables or calculations and all copies thereof; and any and all documents that in whole or in
part contain any trade secrets or confidential, proprietary or other secret information of the
Company or its Affiliates and all copies thereof; and any and all keys, access cards, access codes,
passwords, credit cards, personal computers, telephones and other electronic equipment belonging to
the Company or its Affiliates.
12. Remedies.
(a) Remedies. Executive acknowledges that it would be difficult to fully compensate
the Company for monetary damages resulting from any breach by him of the provisions of Sections 5,
7, 8 or 11 hereof. Accordingly, in the event of any actual or threatened breach of any such
provisions, the Company shall, in addition to any other remedies it may have, be entitled to
injunctive and other equitable relief to enforce such provisions, and such relief may be granted
without the necessity of proving actual monetary damages.
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(b) Arbitration. Except for disputes arising under Sections 5, 7, 8 or 11 hereof, all
disputes involving the interpretation, construction, application or alleged breach of this
Agreement and all disputes relating to the termination of Executive’s employment with the Company
shall be submitted to final and binding arbitration in Denver, Colorado. The arbitrator shall be
selected and the arbitration shall be conducted pursuant to the then most recent Employment Dispute
Resolution Rules of the American Arbitration Association. The decision of the arbitrator shall be
final and binding, and any court of competent jurisdiction may enter judgment upon the award. All
fees and expenses of the arbitrator shall be paid by the Company. The arbitrator shall have
jurisdiction and authority to interpret and apply the provisions of this Agreement and relevant
federal, state and local laws, rules and regulations insofar as necessary to the determination of
the dispute and to remedy any breaches of the Agreement and/or violations of applicable laws, but
shall not have jurisdiction or authority to alter in any way the provisions of this Agreement. The
arbitrator shall have the authority to award attorneys’ fees and costs to the prevailing party.
The parties hereby agree that this arbitration provision shall be in lieu of any requirement that
either party exhaust such party’s administrative remedies under federal, state or local law.
13. Miscellaneous.
(a) Governing Law. All matters relating to the interpretation, construction,
application, validity and enforcement of this Agreement shall be governed by the laws of the State
of Colorado without giving effect to any choice or conflict of law provision or rule, whether of
the State of Colorado or any other jurisdiction, that would cause the application of laws of any
jurisdiction other than the State of Colorado.
(b) Jurisdiction and Venue. Except for disputes to be resolved by arbitration as
provided in Section 12(b), Executive and the Company consent to jurisdiction of the courts of the
State of Colorado and/or the federal district courts, District of Colorado, for the purpose of
resolving all issues of law, equity, or fact, arising out of or in connection with this Agreement.
Any action involving claims of a breach of this Agreement shall be brought in such courts. Each
party consents to personal jurisdiction over such party in the state and/or federal courts of
Colorado and hereby waives any defense of lack of personal jurisdiction. Venue, for the purpose of
all such suits, shall be in Denver County, State of Colorado.
(c) Entire Agreement. This Agreement and the Exhibits hereto contain the entire
agreement of the parties relating to Executive’s employment with the Company and supersede all
prior agreements and understandings with respect to such subject matter, and the parties hereto
have made no agreements, representations or warranties relating to the subject matter of this
Agreement that are not set forth herein.
(d) No Violation of Other Agreements or Obligations. Executive hereby represents and
agrees that neither (i) Executive’s entering into this Agreement nor (ii) Executive’s carrying out
the provisions of this Agreement, will violate any other agreement (oral, written or other) to
which Executive is a party or by which Executive is bound, including without limitation any
agreement to keep in confidence proprietary information, knowledge or data acquired by Executive in
confidence or in trust prior to his employment with the Company. Executive will not disclose to
the Company or induce the Company to use any confidential or
proprietary information or material belonging to any previous employer or others and agrees
not to enter into any agreement either written or oral in conflict with this Agreement.
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(e) Amendments. No amendment or modification of this Agreement shall be deemed
effective unless made in writing and signed by the parties hereto.
(f) No Waiver. No term or condition of this Agreement shall be deemed to have been
waived, except by a statement in writing signed by the party against whom enforcement of the waiver
is sought. Any written waiver shall not be deemed a continuing waiver unless specifically stated,
shall operate only as to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that specifically waived.
(g) Assignment. This Agreement shall not be assignable, in whole or in part, by
either party without the prior written consent of the other party, except that the Company may,
without the consent of Executive, assign its rights and obligations under this Agreement (i) to an
Affiliate or (ii) to any corporation or other person or business entity to which the Company may
sell or transfer all or substantially all of its assets. After any such assignment by the Company,
the Company shall be discharged from all further liability hereunder and such assignee shall
thereafter be deemed to be “the Company” for purposes of all terms and conditions of this
Agreement, including this Section 13(g).
(h) Affiliated Entities. As used in this Agreement, “Affiliates” shall include the
Company and each corporation, partnership, or other entity which controls the Company, is
controlled by the Company, or is under common control with the Company (in each case “control”
meaning the direct or indirect ownership of 50% or more of all outstanding equity interests).
(i) Notices. Notices required to be given under this Agreement must be in writing and
will be deemed to have been given when notice is personally served, one business day after notice
is sent by reliable overnight courier, or three business days after notice is mailed by United
States registered or certified mail, return receipt requested, postage prepaid, to the last known
residence address of Executive or, in the case of the Company, to its principal office, to the
attention of the Board, or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address will be effective only upon
receipt by the other party.
(j) Taxes. The Company shall deduct from any payments made and benefits provided to
Executive hereunder any withholding or other taxes which the Company is required or authorized to
deduct under applicable law.
(k) Counterparts. This Agreement may be executed in any number of counterparts, and
such counterparts executed and delivered, each as an original, shall constitute but one and the
same instrument.
(l) Severability. Subject to Section 7 hereof, to the extent that any portion of any
provision of this Agreement shall be invalid or unenforceable, it shall be
considered deleted herefrom and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect.
12
(m) Captions and Headings. The captions and paragraph headings used in this Agreement
are for convenience of reference only and shall not affect the construction or interpretation of
this Agreement or any of the provisions hereof.
(n) Survival. The parties acknowledge and agree that certain provisions of this
Agreement, including but not limited to Sections 5, 7, 8, 10, 11, 12 and 13 hereof, impose
obligations that according to their terms survive termination of Executive’s employment. All such
provisions shall survive termination of Executive’s employment.
(o) Section 409A. This Agreement is intended to satisfy the requirements of Section
409A(a)(2), (3) and (4) of the Internal Revenue Code of 1986, as amended (“Code”), including
current and future guidance and regulations interpreting such provisions. To the extent that any
provision of this Agreement fails to satisfy those requirements, the provision shall automatically
be modified in a manner that, in the good-faith opinion of the Company, brings the provisions into
compliance with those requirements while preserving as closely as possible the original intent of
the provision. In particular, and without limiting the preceding sentence, if Executive is a
“specified employee” under Section 409A(a)(2)(B)(i) of the Code, then any payment under this
Agreement that is treated as deferred compensation under Section 409A of the Code shall be delayed
until the date which is six months after the date of separation from service (without
interest or earnings).
Signature page to follow
13
IN WITNESS WHEREOF, Executive and the Company have executed this Agreement as of the date
set forth in the first paragraph.
| STARTEK, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxx
|
|||||
| Title: | Chairman of the Compensation Committee | |||||
| of the Board of Directors | ||||||
| /s/ A. Xxxxxxxx Xxxxx | ||||||
| A. XXXXXXXX XXXXX | ||||||
14
EXHIBIT A
STOCK OPTION AGREEMENT
See Attached
A-1
EXHIBIT B
RESTRICTED STOCK AGREEMENT
See Attached
B-1
EXHIBIT C
RELEASE BY A. XXXXXXXX XXXXX
Definitions. I intend all words used in this Release to have their plain meanings in
ordinary English. Specific terms that I use in this Release have the following meanings:
| A. | I, me, and my include both me and anyone who has or
obtains any legal rights or claims through me. |
||
| B. | StarTek means StarTek, Inc., any company related to StarTek, Inc. in
the present or past (including without limitation its predecessors, parents,
subsidiaries, affiliates, and joint venture partners), and any successors of StarTek,
Inc. |
||
| C. | Company means StarTek; the present and past officers, directors,
committees, and employees of StarTek; any company providing insurance to StarTek in the
present or past; the present and past fiduciaries of any employee benefit plan
sponsored or maintained by StarTek (other than multiemployer plans); the attorneys for
StarTek; and anyone who acted on behalf of StarTek or on instructions from StarTek. |
||
| D. | Employment Agreement means the Employment Agreement between StarTek and
me that I executed on January 5, 2007, including all of the documents attached to the
Employment Agreement. |
||
| E. | My Claims mean all of my rights that I now have to any relief of any
kind from StarTek, whether or not I now know about those rights, relating to my
employment relationship with StarTek including without limitation: |
| 1. | all claims arising out of or relating to my employment
relationship with StarTek or the termination of that employment relationship; |
||
| 2. | all claims for any alleged unlawful discrimination, harassment,
retaliation or reprisal, or other alleged unlawful practices arising under any
federal, state, or local statute, ordinance, or regulation, including without
limitation, claims under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, 42
U.S.C. § 1981, the Employee Retirement Income Security Act, the Equal Pay Act,
the Worker Adjustment and Retraining Notification Act, the Fair Credit
Reporting Act, and workers’ compensation non-interference or non-retaliation
statutes; |
||
| 3. | all claims for alleged wrongful discharge; breach of employment
contract; breach of implied employment contract; failure to keep any promise
relating to my employment; breach of a covenant of good faith and fair |
C-1
dealing under the Employment Agreement; breach of fiduciary duty; estoppel;
my activities, if any, as a “whistleblower”; constructive discharge;
retaliation or reprisal; defamation, infliction of emotional distress,
fraud, misrepresentation, negligence, harassment, assault, battery, invasion
of privacy, and interference with contractual or business relationships
relating to my employment relationship with StarTek and the termination of
such employment relationship; any other wrongful employment practices; and
violation of any other law relating to my employment with StarTek; |
| 4. | all claims for compensation of any kind as an employee of
StarTek, including without limitation, bonuses, commissions, stock-based
compensation, stock options, restricted stock, vacation pay, and expense
reimbursements; |
||
| 5. | all claims for back pay, front pay, reinstatement, other
equitable relief, compensatory damages, damages for alleged personal injury,
liquidated damages, and punitive damages relating to my employment relationship
with StarTek and the termination of such employment relationship; and |
||
| 6. | all claims for attorneys’ fees, costs, and interest relating to
any of the foregoing claims. |
However, My Claims do not include any claims that the law does not allow to
be waived; any claims that may arise after the date on which I sign this Release;
any claims for benefits under the terms and conditions of any retirement, pension,
profit sharing, welfare benefit or other employee benefit plan of the Company in
which I am a participant as of the termination of my employment; or any claims that
I may have to indemnification from StarTek as provided under the charter documents
of StarTek, any general liability or officers’ and directors’ liability insurance
policies maintained by StarTek, or applicable law.
Agreement to Release My Claims. I will receive consideration from StarTek as set forth in
the Employment Agreement if I sign and do not rescind this Release as provided below. I understand
and acknowledge that that consideration is in addition to anything of value that I would be
entitled to receive from StarTek if I did not sign this Release or if I rescinded this Release. In
exchange for that consideration I give up and release all of My Claims. I will not make any
demands or claims against the Company for compensation or damages relating to My Claims. The
consideration that I am receiving is a fair compromise for the release of My Claims.
Indemnification and Director and Officer Insurance. Notwithstanding anything to the
contrary herein, this Release shall not extend to any claims for indemnification under any
provision of the Company’s Certificate of Incorporation, Bylaws, the provisions of the
[Indemnification Agreement] dated , 2006, or the provisions of any applicable
director and officer liability insurance policy, and I shall be entitled to indemnification in
accordance therewith to the fullest extent permitted by law. Additionally, I
shall continue to be provided the benefit of director and officer liability insurance following the
termination of my employment with substantially the same terms and amounts that apply to other
officers and directors of StarTek.
C-2
Additional Agreements and Understandings. Even though StarTek will provide consideration
for me to settle and release My Claims, the Company does not admit that it is responsible or
legally obligated to me. In fact, the Company denies that it is responsible or legally obligated
to me for My Claims, denies that it engaged in any unlawful or improper conduct toward me, and
denies that it treated me unfairly.
Cooperation/Non-Disparagement. At the Company’s reasonable request and upon reasonable
notice, I will, from time to time and without further consideration, timely execute and deliver
such acknowledgements, instruments, certificates, and other ministerial documents as may be
necessary or appropriate to formalize and complete the Company’s corporate records and, for up to
five (5) hours in any calendar month (on a non-cumulative basis) for one year following the
termination of my employment, discuss and consult with the Company regarding other matters relating
to my responsibilities while employed by the Company. I will not malign, defame, or disparage the
reputation, character, image, products, or services of the Company, or the reputation or character
of the Company’s directors, officers, employees, or agents. However, nothing in this Release will
be interpreted to prohibit me from cooperating with any civil or criminal investigation or giving
truthful information in response to a valid subpoena or court order.
Acknowledgement of Continuing Obligations. I acknowledge and agree that certain of my
obligations under the Employment Agreement, including but not limited my obligations under Sections
5, 7, 8, 10, 11, 12, and 13 of the Employment Agreement, survive the termination of my employment
with the Company. I represent that I am in compliance, and shall continue to comply, with all such
continuing obligations under the Employment Agreement.
Advice to Consult with an Attorney. I understand and acknowledge that I am hereby being
advised by the Company to consult with an attorney prior to signing this Release and I have done
so. My decision whether to sign this Release is my own voluntary decision made with full knowledge
that the Company has advised me to consult with an attorney.
Period to Consider the Release. I acknowledge that I may take up to 21 days following the
later of my receipt of this Release or the termination of my employment to consider whether I wish
to sign this Release. If I sign this Release before the end of the 21-day period, it will be my
voluntary decision to do so because I have decided that I do not need any additional time to decide
whether to sign this Release.
My Right to Rescind this Release. I understand that I may rescind this Release at any time
within 7 days after I sign it, not counting the day upon which I sign it. This Release will not
become effective or enforceable unless and until the 7-day rescission period has expired without my
rescinding it.
C-3
Procedure for Accepting or Rescinding the Release. To accept the terms of this Release, I
must deliver the Release, after I have signed and dated it, to StarTek by hand or by mail within
the 21-day period that I have to consider this Release. To rescind my acceptance, I must deliver a
written, signed statement that I rescind my acceptance to StarTek by hand or by mail within the
7-day rescission period. All deliveries must be made to StarTek at the following address:
[
]
If I choose to deliver my acceptance or the rescission of my acceptance by mail, it must be
postmarked within the period stated above and properly addressed to StarTek at the address stated
above.
Interpretation of the Release. This Release should be interpreted as broadly as possible
to achieve my intention to resolve all of My Claims against the Company. If this Release is held
by a court to be inadequate to release a particular claim encompassed within My Claims, this
Release will remain in full force and effect with respect to all the rest of My Claims.
My Representations. I am legally able and entitled to receive the consideration being
provided to me in settlement of My Claims. I have not been involved in any personal bankruptcy or
other insolvency proceedings at any time since I began my employment with StarTek. No child
support orders, garnishment orders, or other orders requiring that money owed to me by StarTek be
paid to any other person are now in effect.
I have read this Release carefully. I understand all of its terms. In signing this Release, I
have not relied on any statements or explanations made by the Company except as specifically set
forth in the Employment Agreement. I am voluntarily releasing My Claims against the Company. I
intend this Release to be legally binding.
Dated: |
||||||
| A. Xxxxxxxx Xxxxx |
C-4
