EXHIBIT 10.20
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into effective as
of May 13, 2005 by and between StarTek, Inc., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxx, 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 executive officer of the Company, and wishes
to continue his employment 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 May
13, 2005 the Company shall continue to employ Executive, and Executive shall
accept such continuation of employment and perform services for the Company and
Affiliates (as defined in Section 13) in the capacities as requested by the
Board of Directors of the Company (the "Board") as provided in this Agreement.
2. Term of Employment. Unless terminated at an earlier date in accordance
with Section 9 hereof, the term of Executive's employment with the Company
pursuant to this Agreement shall be for the period commencing on May 13, 2005
and ending on May 13, 2010 (the "Term"). Thereafter, unless terminated at an
earlier date in accordance with Section 9 hereof, the term of Executive's
employment with the Company shall be automatically extended for successive
one-year periods, unless either party gives written notice to the other party at
least 90 days prior to the expiration of such term that such party elects not to
extend the term of Executive's employment under this Agreement.
3. Position and Duties.
(a) Position with the Company. Commencing on May 13, 2005 and
continuing for the duration of Executive's employment with the Company during
the Term, 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, and shall
perform such responsibilities as the Board may assign to him from time to time
consistent with his position. Executive shall also serve as Treasurer and
Secretary of the Company until such positions are otherwise filled by action of
the Board based upon the recommendation of Executive, and as an officer and/or
director of any and all Affiliates. Executive shall perform such
responsibilities for such 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, the Board shall nominate Executive to
the Board, and upon election Executive shall serve on the Board 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.
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 during the Term, 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 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 Compensation Committee may reduce Executive's base
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salary by no more than 25% of Executive's then current 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 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.
(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 50% of annual base salary, subject
to achievement of performance criteria established by the Compensation Committee
after consultation with Executive.
(c) Stock Options. The Company shall grant to Executive on May 13,
2005, options to purchase 225,000 shares of the common stock of the Company
("New Options") pursuant to the StarTek, Inc. Stock Option Plan dated February
13, 1997, as amended (the "Plan") at an exercise price per share equal to 100%
of the Fair Market Value on the date of grant. Executive will also retain the
options to purchase 75,000 shares of common stock granted at the time of his
appointment as Chief Financial Officer of the Company pursuant to that certain
Amended and Restated Option Agreement dated effective as of January 3, 2005
attached hereto as Exhibit A (the "Existing Options", and together with the New
Options, the "Stock Options"). The full terms and conditions of the New Options
will be as set forth in the Option Agreement dated May 13, 2005 attached hereto
as Exhibit B, entered into between the Company and Executive and approved by the
Board. All Stock Options will be subject to the terms and conditions of the
Plan. Executive will be considered for additional stock option grants at least
once a year and the Compensation Committee will undertake to review the level of
stock options held by Executive in comparison to the overall market for a
company of like size and stature. The Stock Options will vest as provided in the
option agreements attached hereto as Exhibit A and Exhibit B.
(d) 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.
(e) Insurance Benefits. While Executive is employed by the Company
hereunder, the Company will continue to reimburse Executive for life insurance
premiums under those certain Northwestern Mutual Insurance Company $1,000,000
life policies in effect as of the
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date of this Agreement (the premiums for which policies are being paid for by
the Company as of the date of this Agreement) (together, the "Life Insurance
Policy") and health insurance premiums under that certain World Medical
Insurance policy the premiums for which are being paid for by the Company as of
the date of this Agreement (the "Health Insurance Policy") for Executive's
current levels of coverage for life insurance and health insurance. The Company
will also reimburse Executive for the cost (not exceeding $10,000 per year) of
supplemental disability insurance coverage providing a benefit of up to $15,000
per month.
(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
time off 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.
5. Confidential Information. 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
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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.
For purposes of this Agreement, "Restrictive Period" shall mean:
(A) 12 consecutive months from and after the date of termination of Executive's
employment, and (B) in the case Executive is entitled to receive 24 months of
severance payments pursuant to Section 10(b), 24 consecutive months from and
after the date of termination of Executive's employment.
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.
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 will 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 tehnical
support and customer care services) and/or supply chain management services
(including without limitation packaging, fulfillment, marketing support and
logistics services (collectively, the "Business"). 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, principal,
agent, partner, officer, director, stockholder, employee, member of any
association, consultant or otherwise) hire, engage or solicit any person who is
then an employee or contractor of the Company or who was an employee or
contractor of the Company at any time during the six-month period immediately
preceding Executive's termination of employment.
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(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, principal,
agent, partner, officer, director, stockholder, employee, member of any
association, 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 violation or continuing to violate such provision.
(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 which 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
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for no additional compensation therefore, 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);
(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
(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.
(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, for which the Company must
give no less than 90 days notice if the termination is
for other than "Cause" (as defined below);
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(ii) Executive's abandonment of his employment or his
resignation;
(iii) Executive's Disability (as defined below); or
(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.
10. Payments upon Termination of Employment.
(a) If, prior to the end of the Term, Executive's employment with
the Company is terminated for any reason other than for the reasons set forth in
Sections 10(b) or 10(d) hereof, then the Company shall, subject to the
conditions in Section 10(i):
(i) pay to Executive as severance pay an amount equal to his
then current base salary for a period of 12 consecutive
months after the Termination Date;
(ii) if Executive elects to continue for himself and his
eligible dependents the Life Insurance Policy and Health
Insurance Policy following the Termination Date, pay the
full cost of such coverage at the same level of coverage
that was in effect as of the Termination Date for a
period of 12 consecutive months after the Termination
Date; and
(iii) pay to Executive a prorated portion (based on the number
of days Executive was employed during such year) of any
annual incentive bonus that would have been payable to
him pursuant to Section 4(b) of this Agreement for such
fiscal year as if Executive had been in the employ of the
Company for the full fiscal year, based on actual Company
performance for such fiscal year.
(b) If, prior to the end of the Term, Executive's employment with
the Company is terminated (i) in connection with the consummation of a Change of
Control Event (as defined below), or (ii) without Cause or Executive resigns for
Good Reason during the one-year period following the occurrence of a Change of
Control Event, then in each event the Company shall, subject to the conditions
set forth in Section 10(i):
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(i) pay to Executive as severance pay an amount equal to his
then current base salary for a period of 24 consecutive
months after the Termination Date;
(ii) if Executive elects to continue for himself and his
eligible dependents the Life Insurance Policy and Health
Insurance Policy following the Termination Date, pay the
full cost of such coverage at the same level of coverage
that was in effect as of the Termination Date for a
period of 24 consecutive months after the Termination
Date; and
(iii) pay to Executive a prorated portion (based on the number
of days Executive was employed during the year of
termination) of any annual incentive bonus that would
have been payable to him pursuant to Section 4(b) of this
Agreement solely for the fiscal year of such termination
as if Executive had been in the employ of the Company for
the full fiscal year, based on actual Company performance
for such fiscal year.
For purposes of this Agreement, a "Change of Control Event" shall
mean any event described in the first sentence of Section 17 of the
Plan.
(c) Any amount payable to Executive or for the benefit of Executive
and his eligible dependents shall be subject to applicable deductions and
withholdings. Severance pay pursuant to Section 10(a)(i) or Section 10(b)(i)
shall be paid to Executive by the Company in equal installments in accordance
with the Company's regular payroll schedule, commencing on the first normal
payroll date of the Company following the expiration of the applicable
rescission periods provided by law and any six month delay required by 409A of
the Internal Revenue Code and continuing for the applicable period thereafter.
Any annual incentive bonus payable pursuant to Section 10(a)(iii) or Section
10(b)(iii) shall be paid to Executive at the same time as incentive awards for
such fiscal year are paid to other executives of the Company.
(d) If Executive's employment with the Company is terminated by
reason of:
(i) Executive's abandonment of his employment or Executive's
resignation without Good Reason (as defined below);
(ii) termination of Executive's employment by the Company for
Cause (as defined below);
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(iii) Executive's Disability or death; or
(iv) expiration of the Term of Executive's employment with the
Company, as specified in Section 2 hereof,
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.
(e) "Cause" hereunder shall mean:
(i) Any material breach by Executive of this Agreement;
(ii) unlawful conduct or gross misconduct that is willful and
deliberate on Executive's part and that, in either event,
is materially injurious to the Company;
(iii) the conviction of Executive in any jurisdiction for (or
pleading nolo contendere to) any crime that constitutes a
felony, or that constitutes a misdemeanor that involves
fraud, moral turpitude or material loss to the Company or
its Affiliates, or their respective businesses or
reputations; or
(iv) willful and deliberate breach by Executive of his
fiduciary obligations as an officer or director of the
Company.
(f) "Good Reason" hereunder shall mean:
(i) without the consent of Executive, the assignment of
Executive to duties substantially inconsistent with his
position, duties, responsibility or status immediately
prior to the assignment, excluding for this purpose an
action not taken in bad faith and which is remedied by
the Company within 30 days after receipt of notice
thereof given by Executive;
(ii) reduction in Executive's base salary except for (A)
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;
provided that, such salary reduction does not reduce
Executive's then current base salary by more than 25%, or
(B) a reduction in Executive's base salary consented to
by Executive;
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(iii) without the consent of Executive, change of Executive's
work location by more than 50 miles; or
(iv) any material breach by the Company of the Employment
Agreement not caused by Executive, which breach has not
been cured by the Company within 30 days after receipt of
written notice to the Company from Executive specifying
with reasonable detail the reasons that Executive
believes a material breach has occurred.
(g) "Disability" hereunder shall mean 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, as determined by a physician mutually acceptable to Executive and
the Company, 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.
(h) 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(b) 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 otherwise provided by law, under the terms of any other
applicable written agreement between Executive and the Company, or under the
terms of any employee benefit plans or programs then maintained by the Company
in which Executive participates.
(i) 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 Section 10(a) 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 shall have expired; and (iii) Executive is in strict 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(i) 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
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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, 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 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.
(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.
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(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 supersedes all prior agreements and understandings with
respect to such subject matter, including that certain Executive Confidentiality
and Non-Competition Agreement by and between Executive and the Company, dated
January 3, 2005, 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.
(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
13
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.
(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 or expiration of the Term. All such
provisions shall survive termination of Executive's employment and expiration of
the Term.
SIGNATURE PAGE TO FOLLOW
14
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
---------------------------------------
Xxxxxx X. Xxxxx
Title: Chairman of the Compensation Committee
of the Board of Directors
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
XXXXXX X. XXXXXX
15
EXHIBIT A
AMENDED AND RESTATED OPTION AGREEMENT
(75,000 SHARES)
SEE ATTACHED
A-1
EXHIBIT B
OPTION AGREEMENT
(225,000 SHARES)
SEE ATTACHED
B-1
EXHIBIT C
RELEASE BY XXXXXX X. XXXXXX
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 May 13, 2005, 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. Section 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
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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 or stock options, 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; any claims for breach of Section 10 of
the Employment Agreement; or any claims that I may have to
indemnification from StarTek as provided under the charter documents of
StarTek or that certain Indemnification Agreement dated January 3, 2005
by and between StarTek and me (the "Indemnification Agreement"), 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.
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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.
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. I understand that nothing
in this Release will impact my rights or the Company's obligations under the
Indemnification 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 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.
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:
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[----------------------
----------------------
----------------------]
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 Agreement and the Release signed
by StarTek. I am voluntarily releasing My Claims against the Company. I intend
this Release to be legally binding.
Dated: May 13, 2005 /s/ Xxxxxx X. Xxxxxx
------------------------ -----------------------------------
Xxxxxx X. Xxxxxx
C-4
