EXHIBIT 10.22
STARTEK, INC.
AMENDED AND RESTATED OPTION AGREEMENT
Date of Grant: January 3, 2005 (the "Date of Grant")
THIS AMENDED AND RESTATED OPTION AGREEMENT (this "Agreement"),
dated as of May 13, 2005 (the "Effective Date"), is delivered by StarTek, Inc.,
a Delaware corporation (the "Company") to Xxxxxx X. Xxxxxx (the "Participant"),
who is an employee of the Company or one of its Designated Subsidiaries.
Recitals
A. The Board of Directors of the Company (the "Board") has adopted,
with subsequent stockholder approval, the StarTek, Inc. Stock Option Plan (the
"Plan").
B. The Plan provides for the granting of incentive stock options (each
an "ISO") and nonqualified stock options (each a "NSO") by a committee to be
appointed by the Board (the "Committee") to key employees of the Company or any
subsidiary of the Company to purchase, or to exercise certain rights with
respect to, shares of the common stock of the Company, par value $0.01 per
share, in accordance with the terms and provisions thereof.
C. The Company and Participant have previously entered into that
certain Option Agreement by and between the Company and Participant dated as of
January 3, 2005 (the "Original Option Agreement").
D. The Company and Participant have entered into that certain
Employment Agreement, dated as of May 13, 2005, by and between the Company and
Participant (the "Employment Agreement") pursuant to which the Company and
Participant agreed to amend and restate the Original Option Agreement subject to
the terms and conditions hereof.
E. In connection with the Employment Agreement, the Company and
Participant desire to amend and restate in its entirety the Original Option
Agreement as set forth herein.
Agreement
NOW, THEREFORE, the parties hereby agree to amend and restate the
Original Option Agreement as follows:
1. DEFINITIONS. Except as expressly indicated herein, defined terms used in this
Agreement shall have the meanings set forth in the Plan.
2. GRANT OF OPTION. Subject to the terms and conditions hereinafter set forth,
the Company, with the approval and at the direction of the Committee, hereby
grants to the Participant, as of the Date of Grant, an option to purchase up to
75,000 shares of Common Stock at a price of $27.80 per share, the Fair Market
Value of the Common Stock as of the Date of Grant. Such option is hereinafter
referred to as the "Option" and the shares of Common Stock purchasable upon
exercise of the Option are hereinafter sometimes referred to as the "Option
Shares". The Option is intended by the parties hereto to be, and shall be
treated as, an ISO.
3. VESTING AND TERMINATION OF THE OPTION.
(a). Vesting of Option. Subject to the provisions of the Plan
which provide for acceleration of exercisability of the Option in certain
circumstances as provided therein and such further limitations as are provided
in the Plan and this Agreement, the Option shall vest and be exercisable as to
the Option Shares (subject to adjustment as provided in paragraph 10 of the
Plan) as follows:
Effective as of the Effective Date, 3,750
Option Shares shall vest and be immediately
exercisable.
Commencing on June 16, 2005 and on the 16th
day of each month thereafter through and
including the first anniversary of the
Vesting Commencement
Date (as defined below): 1,250 Option Shares
On the second anniversary
of the Vesting Commencement
Date: 15,000 Option Shares
On the third anniversary
of the Vesting
Commencement Date: 15,000 Option Shares
On the fourth anniversary
of the Vesting
Commencement Date: 15,000 Option Shares
On the fifth anniversary
of the Vesting
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Commencement Date: The balance of the
Option Shares not
theretofore vested.
For purposes of this Agreement, "Vesting Commencement Date" shall mean February
16, 2005. Except as provided below, upon Termination of Employment for any
reason, a Participant shall forfeit any Options that are not vested on the date
of Termination of Employment. In the event of any Termination of Employment of
Participant for any reason other than for the reasons set forth in Section 10(d)
of the Employment Agreement prior to the second anniversary of the Vesting
Commencement Date, then, all unvested Option Shares that were scheduled to vest
and become exercisable on or before the second anniversary of the Vesting
Commencement Date shall immediately vest and become immediately exercisable to
the extent such Option Shares were not previously vested and exercisable.
Notwithstanding any provisions of the Plan to the contrary, upon Termination of
Employment of the Participant for Cause, no Options vested as of the date of
Termination of Employment will be cancelled and forfeited by the Participant by
reason of such Termination of Employment for Cause and such vested Options shall
remain exercisable pursuant to the terms of this Agreement.
(b) Termination of Option. Subject to the provisions of the Plan, the
Option granted under this Agreement will expire as of the earliest of:
(i) the date of which it is forfeited under the
provisions of paragraph 3(a) hereof;
(ii) 10 years from the Option Date;
(iii) 180 days after the Participant's Termination of
Employment for any reason; provided however, the
Participant acknowledges that under present law, if
the Option is exercised more than three (3) months
after the date of termination of employment, the
Option will not qualify as an ISO, unless the
Participant dies within such three (3) month period.
In the event that ISO treatment is not available, the
Option will be taxed as a NSO upon exercise.
4. EXERCISE OF OPTIONS.
(a) Notice and Payment. To exercise an Option in whole or in part, a
Participant (or, after his death, his executor or administrator) must give
written notice to the Committee, stating the number of shares as to which he
intends to exercise the Option together with payment of the Option Price. The
Option Price (and any required withholding) may be paid (i) in cash, or (ii) in
shares of Common Stock having an aggregate Fair Market Value, as determined on
the date of delivery, equal to the Option Price.
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(b) Delivery of Certificate. On the exercise date specified in the
Participant's notice or as soon thereafter as is practicable, the Company shall
cause to be delivered to the Participant, a certificate or certificates for the
Option Shares then being purchased (out of theretofore unissued Common Stock or
reacquired Common Stock, as the Company may elect) upon full payment for such
Option Shares. The obligation of the Company to deliver Common Stock shall,
however, be subject to the condition that if at any time the Committee shall
determine in its discretion that the listing, registration or qualification of
the Option or the Option Shares upon any securities exchange or under any state
or federal law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition of, or in connection with, the Option
or the issuance or purchase of Common Stock thereunder, the Option may not be
exercised in whole or in part unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any conditions
not acceptable to the Committee.
(c) Failure to Pay. If the Participant fails to pay for any of the
Option Shares specified in such notice and any required withholding tax or fails
to accept delivery of the Option Shares, the Participant's right to purchase
such Option Shares may be terminated by the Company. The date specified in the
Participant's notice as the date of exercise shall be deemed the date of
exercise of the Option, provided that payment in full for the Option Shares to
be purchased upon such exercise and any required tax withholding shall have been
received by such date.
5. NON-TRANSFERABILITY TO OPTION. During the Participant's lifetime, the Option
shall be exercisable only by the Participant or any guardian or legal
representative of the Participant, and the Option shall not be assignable or
transferable by the Participant except, in case of the death of the Participant,
by will or the laws of intestate succession. In addition, the Option shall not
be subject to attachment, execution or other similar process. In the event of
(i) any attempt by the Participant to alienate, assign, pledge, hypothecate or
otherwise dispose of the Option, except as provided for herein, or (ii) the levy
of any attachment, execution or similar process upon the rights or interest
hereby conferred, the Company may terminate the Option by notice to the
Participant and it shall thereupon become null and void.
6. TRANSFERABILITY OF OPTION SHARES. The Participant hereby agrees that the
Option Shares acquired upon exercise of the Option shall be acquired for the
Participant's own account for investment purposes only and not with a view to
any distribution or public or public offering thereof within the meaning of the
Act, or other applicable securities laws. If the Board so determines, any stock
certificates issued upon exercise of the Option shall bear a legend to the
effect that the Option Shares have been so acquired. The Company shall not be
required to bear any expenses of compliance with the Act, other applicable
securities laws, or the rules and regulations of any national securities
exchange or other regulatory authority in connection with the registration,
qualification or transfer, as the case may be, of the Option or any Options
Shares acquired upon exercise thereof. The foregoing restrictions on the
transfer of Options
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Shares shall not apply if (i) the Company shall have been furnished with a
satisfactory opinion of counsel to the effect that such transfer will be in
compliance with the Act and all other applicable securities laws, or (ii) the
Option Shares shall have been duly registered in compliance with the Act and all
other applicable securities laws.
The Participant further agrees that, upon any sale of Option Shares
within two (2) years from the Date of Grant of the Option, or within one year
after transfer of such Option Shares to the Participant's ownership, then the
Participant shall immediately notify the Company in writing of such disposition
and the amount realized by the Participant upon such disposition.
7. EMPLOYMENT NOT AFFECTED. Neither the granting of the Option nor its exercise
shall be construed as granting to the Participant any right with respect to
continuance of employment with the Company or any Subsidiary. Except as may
otherwise be limited by a written agreement between the Company or any
Subsidiary and the Participant, the right of the Company or any Subsidiary to
terminate at will the Participant's employment with it at any time (whether by
dismissal, discharge, retirement or otherwise) is specifically reserved by the
Company or Subsidiary (whichever the case may be), and acknowledged by the
Participant.
8. AMENDMENT OF OPTION. The Option may be amended by the Board or the Committee
at any time (i) if the Board or the Committee determines, in its sole
discretion, that amendment is necessary or advisable in the light of any
addition to or change in the Code or in the regulations issued thereunder, or
any federal or state securities law or other law or regulation, which change
occurs after the Date of Grant and by its terms applies to the Option or (ii)
other than in the circumstances described in clause (i), with the consent of the
Participant.
9. NOTICE. Any notice to the Company provided for in this Agreement shall be
addressed to the Company in care of its Secretary at its executive offices at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and any notice to the Participant
shall be addressed to the Participant at the current address shown on the
payroll records of the Company. Any notice shall be deemed to be duly given if
and when properly addressed and posted by registered or certified mail, postage
prepaid.
10. INCORPORATION OF PLAN BY REFERENCE. The Option is granted pursuant to the
terms of the Plan, the terms of which are incorporated herein by reference, and
the Option shall in all respects be interpreted in accordance with and subject
to the terms and provisions of the Plan. The Committee shall interpret and
construe the Plan and this Agreement, and its interpretations and determinations
shall be conclusive and binding on the parties hereto and any other person
claiming an interest hereunder, with respect to any issue arising hereunder or
thereunder. If any terms of this Agreement conflict with the terms of the Plan,
the terms of the Plan shall control.
11. ENTIRE AGREEMENT. This Agreement and the Plan constitute the only agreements
of the parties relating to the matters covered hereby. Any prior or
contemporaneous
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agreements, promises, negotiations or representations not expressly set forth in
this Agreement or the Plan are of no force or effect. This Agreement supersedes
any and all existing contracts and agreements by the parties with respect to the
subject matter covered herein, including the Original Option Agreement.
12. GOVERNING LAW. The validity, construction, interpretation and effect of this
Agreement shall exclusively be governed by and determined in accordance with the
laws of the State of Delaware, except to the extent preempted by federal law,
which shall to the extent of such preemptive govern.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
Effective Date specified above.
STARTEK, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman of the Compensation ACCEPTED AND AGREED TO:
Committee of the Board of Directors
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx, Participant
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