Exhibit 10.1


 


ASSET
PURCHASE AGREEMENT


 


This
ASSET PURCHASE AGREEMENT,
dated as of February 25, 2009 (this “Agreement”), is
made by and between StarTek, Inc., a Delaware corporation (“Parent”), Domain.com, Inc., a Delaware corporation (“Seller”), and A. Emmet Stephenson Jr., Inc.,
a Colorado corporation (“Purchaser”).


 


RECITALS:


 


WHEREAS, Parent is a provider of business
process outsourcing services to the communications industry and is the owner of
all of the issued and outstanding capital stock of Seller;


 


WHEREAS, Seller owns
registrations of domain names and provides related services (the “Business”); and


 


WHEREAS, Seller has decided to sell the
Business, and in accordance therewith, Purchaser desires to purchase, and
Seller desires to sell and transfer, certain assets used or held for use in the
Business upon the terms and subject to the conditions specified in this
Agreement.


 


NOW,
THEREFORE, in
consideration of the premises and the covenants, promises, and agreements
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, agree as follows.


 


ARTICLE I

PURCHASE AND SALE OF ASSETS


 


Section 1.1             Purchase and Sale of Assets;
Purchase Price. On the date hereof and upon the terms and subject to the
conditions provided below, Seller shall convey, assign, transfer and deliver to
Purchaser all of Seller’s right, title and interest in, to and under, if any,
consistent with Section 3.3, the assets listed on Schedule 1.1
hereto, (the “Assets”).  In exchange for the Assets, Purchaser shall
pay to Seller cash in the aggregate amount of $7,075,000 (the “Purchase Price”). 
Seller shall be entitled to retain all revenues that are received with
respect to the Assets through the Closing (as defined below), and Purchaser
shall be entitled to retain all revenues that are received with respect to the
Assets after the Closing (determined in both cases by using a cash basis method
of accounting).


 


Section 1.2             Assumed Liabilities.
Purchaser assumes from Seller, and Seller assigns to Purchaser, all liabilities
and obligations of Seller listed on Schedule 1.2
(collectively, the “Assumed Liabilities”),
which shall be the sole responsibility of Purchaser after the Closing.  Purchaser agrees to pay, perform and
discharge the Assumed Liabilities as and when they become due and to indemnify
Seller against all claims, losses and expenses relating to the Assumed
Liabilities.  Notwithstanding anything to
the contrary in this Agreement, (a) all Assumed Liabilities that are not
transferable without consent from any other party or parties thereto shall be
deemed to have been assigned and assumed as of the date hereof, irrespective of
any failure to obtain such consent, and (b) all liabilities of Seller that
are not Assumed Liabilities will remain the obligation of Seller.


 


1

















 


Section 1.3             Closing. The closing of the
sale and purchase of the Assets under this Agreement (the “Closing”) shall take place on the date
hereof.  The effective time of the
transactions contemplated hereby shall be at 12:01 a.m., Mountain Time, on
the date hereof (the “Effective Time”).  At the Closing, Seller shall
deliver or cause to be delivered to Purchaser the fully executed Bill of Sale,


 


Assignment,
and Assumption Agreement (the “Bill of Sale”),
in the form attached hereto as Schedule 1.3,
under which Seller shall assign, and Purchaser shall assume, the Assets and
Assumed Liabilities.  At the Closing,
Purchaser shall deliver or cause to be delivered to Seller the Purchase Price
in cash and the Bill of Sale, duly executed by Purchaser.


 


Section 1.4             Allocation of Purchase Price.  The Purchase Price will be allocated for tax
purposes in accordance with the allocation schedule attached to be prepared by
Purchaser and to be delivered to Seller and Parent not later than ten business
days after the Closing.  Purchaser will
ensure that the allocation schedule is prepared in accordance with Section 1060
of the Internal Revenue Code.  After the
Closing, the parties will make consistent use of the allocation, fair market
value and useful lives specified in such schedule for all tax purposes and in
all filings, declarations and reports with the Internal Revenue Service (“IRS”) in respect to the transactions contemplated by this
Agreement, including the reports required to be filed under Section 1060
of the Internal Revenue Code.  Purchaser
will prepare and deliver the IRS Forms 8594 to Seller within forty-five (45)
days after the Closing Date to be filed with the IRS.  In any proceeding or investigation related to
the determination of any tax, none of Purchaser, Seller or Parent shall contend
or represent that such allocation is not a correct allocation.


 


ARTICLE II

REPRESENTATIONS AND WARRANTIES OF PURCHASER


 


Purchaser represents and
warrants to Seller that, as of the Closing:


 


Section 2.1             Capacity and Enforceability.
Purchaser has the legal capacity to execute and deliver this Agreement and the
documents to be executed and delivered by Purchaser pursuant to the
transactions contemplated hereby. This Agreement and the documents to be
executed and delivered by Purchaser pursuant to the transactions contemplated
hereby have been duly executed and delivered by Purchaser and, assuming due
authorization, execution and delivery hereof and thereof by the other parties
hereto and thereto, constitutes the valid and binding agreement of Purchaser,
enforceable against Purchaser in accordance with their terms.


 


Section 2.2             Absence of Restrictions and
Conflicts. The execution and delivery by Purchaser of this Agreement and
the documents to be executed and delivered by Purchaser pursuant to the
transactions contemplated hereby do not, and the performance of each of
Purchaser’s obligations hereunder and thereunder will not, (a) conflict
with or violate any law applicable to Purchaser or by which any property or
asset of Purchaser is bound, or (b) violate or conflict with, constitute a
breach of or default under, result in the loss of any benefit under, permit the
acceleration of any obligation under or create in any party the right to
terminate, modify or cancel, (i) any contract, will, agreement, permit,
franchise, license or other instrument applicable to Purchaser (ii) any
judgment, decree or order of any governmental entity to which Purchaser is a
party or by which any of its properties are bound or (iii) arbitration
award applicable to Purchaser.


 


2

















 


Section 2.3             Compliance with Laws.  To the knowledge of Purchaser (and Purchaser
acknowledges that an affiliate of Purchaser is Seller’s sole employee), Seller
is in compliance with all laws applicable to its Business except where the
failure to do so has not had, and would not reasonably be expected to have a
material adverse effect on either the assets, business, operations, personnel
or condition (financial or otherwise) of Seller.


 


Section 2.4             Formation and Transfer of
Corporations. Purchaser (a) acknowledges and agrees that Seller has
formed certain corporations under the laws of the state of Delaware under the
direction of an affiliate of Purchaser (the “Corporate
Names”), (b) waives any right to seek indemnification from
Seller and Parent under this Agreement with respect to any Loss (as defined
below) to the extent that such Loss arises in connection with the incorporation
of any Corporate Names and (c) shall indemnify and hold harmless the
Seller and its affiliates from any and all Losses (regardless of whether the
liability, cost or expense relates to the period before or after the date of
this Agreement) relating in any way to the formation or filing or payment of
state franchise tax obligations related to the Corporate Names.


 


Section 2.5             As Is, Where Is. PURCHASER
HEREBY ACKNOWLEDGES AND AGREES THAT, BASED ON PURCHASER’S INDEPENDENT
INVESTIGATION OF THE ASSETS AND THE BUSINESS, SELLER IS SELLING AND PURCHASER
IS PURCHASING THE ASSETS ON AN “AS IS, WHERE IS” BASIS WITHOUT ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO
ANY MATTER RELATING TO THE ASSETS OR THE BUSINESS, INCLUDING INCOME TO BE
DERIVED OR EXPENSES TO BE INCURRED IN CONNECTION WITH THE ASSETS, THE PHYSICAL
CONDITION OF ANY OF THE ASSETS, THE VALUE OF THE ASSETS (OR ANY PORTION
THEREOF), THE MERCHANTABILITY OR FITNESS OF THE ASSETS FOR ANY PARTICULAR
PURPOSE, EXCEPT AS SUCH MATTERS MAY BE AFFECTED BY THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN ARTICLE III OF THIS AGREEMENT.


 


Section 2.6             No Broker.  Purchaser has not entered into any contract,
arrangement or understanding with any Person that may result in the obligation
of Parent, Seller or Purchaser to pay any finder’s fees, brokerage or agent’s
commissions or other like payments to any finder, broker or sales agent in
connection with the negotiations leading to this Agreement or the consummation
of the transactions contemplated hereby.


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT


 


Seller and Parent jointly
and severally represent and warrant to Purchaser that, as of the Closing:


 


Section 3.1             Incorporation and Good Standing;
Authority and Enforceability. Seller is a corporation duly incorporated,
validly existing, and in good standing under the laws of the State of Delaware.
Seller has all necessary corporate power and authority to execute and deliver
this Agreement and the documents to be executed pursuant to the transactions
contemplated hereby, to perform their obligations hereunder and thereunder, and
to consummate the transactions contemplated hereby.  This Agreement and the documents to be
executed and delivered by Seller pursuant to the transactions contemplated
hereby have been duly approved by all requisite corporate action of Seller,
including approval by the board of directors of Seller, and have been executed
and delivered by Seller and, assuming due authorization, execution and delivery
hereof and thereof by the other parties hereto and 


 


3

















 


thereto,
constitutes the valid and binding agreement of Seller, enforceable against
Seller in accordance with their terms.


 


Section 3.2             Absence of Restrictions and
Conflicts. The execution and delivery by Seller of this Agreement and the
documents to be executed and delivered by Seller pursuant to the transactions
contemplated hereby does not, and the performance of each of Seller’s
obligations hereunder and thereunder will not, (a) conflict with or
violate any provision of the certificate of incorporation or bylaws of Seller, (b) conflict
with or violate any law applicable to Seller or by which any property or asset
of Seller is bound, or (c) violate or conflict with, constitute a breach
of or default under, result in the loss of any benefit under, permit the
acceleration of any obligation under or create in any party the right to terminate,
modify or cancel, (i) any contract, will, agreement, permit, franchise,
license or other instrument applicable to Seller, (ii) any judgment,
decree or order of any governmental entity to which Seller is a party or by
which any of its properties are bound or (iii) any arbitration award
applicable to Seller.


 


Section 3.3             Title to Assets.  The Assets are free and clear of all liens
and encumbrances; provided, however, that Purchaser acknowledges
and agrees that the Assets are subject to the terms of the contracts that
constitute a portion of the Assets. 
Seller has not sold, transferred, leased, licensed, pledged, exchanged,
mortgaged, or otherwise disposed of any right to any of the Corporate Names,
each of which was formed by the filing of a certificate of incorporation with
the Delaware Secretary of State.  Seller has exclusive ownership of
the registration rights to each of the domain names listed on Schedule 1.1, and all rights to renew the registration of
each such domain name.  Upon execution
and delivery of the Bill of Sale to Purchaser, (i) exclusive ownership of
the registration rights to each of the domain names listed on Schedule 1.1 (including but not limited to the passwords and
authorization codes for the domain names and all rights to renew the domain
names) will be conveyed to Purchaser and (ii) Seller’s right, title and
interest in all other Assets will be conveyed to Purchaser, subject only to
Purchaser’s waiver of rights in Section 2.4(b).


 


Section 3.4             Absence of Undisclosed Liabilities.  Seller has no
liability, debt, obligation or liability of any type, contingent or otherwise,
liquidated or unliquidated, known or unknown, of any nature or in any amount (a
“Liability”), and there is no basis for
any such Liability, that would affect the transfer to Purchaser of Seller’s
title to the Assets or the use and enjoyment of the Assets by Purchaser, except
for any such Liability as to which Purchaser has knowledge prior to the
Closing.  For clarity, except for
Liabilities known to Purchaser prior to the Closing and not disclosed to Seller
prior to the Closing, the parties intend that Seller and Parent shall be
responsible under Section 5.1 for any Liability that is based on facts,
circumstances, or conditions prior to the Closing, and that Purchaser shall be
responsible for any Liability that is based on facts, circumstances, or
conditions after the Closing.


 


Section 3.5             Litigation.  Except as set
forth on Schedule 3.5, there is no suit, claim,
action, arbitration, audit, hearing or other legal proceeding (whether civil,
criminal, administrative or judicial, whether formal or informal, whether
public or private, or whether before a governmental body or arbitrator),
pending or to the knowledge of Seller, threatened, against or relating to the
Assets, or that challenges, or would reasonably be expected to have the effect
of preventing, delaying, making illegal or otherwise interfering with, the
transfer to Purchaser of Seller’s title to the Assets or the use and enjoyment
of the Assets by Purchaser, except for any such matters as to which Purchaser
has knowledge.


 


4

















 


Section 3.6             No Broker.  Neither Parent nor Seller has entered into
any contract, arrangement or understanding with any Person that may result in
the obligation of Parent, Seller or Purchaser to pay any finder’s fees,
brokerage or agent’s commissions or other like payments to any finder, broker
or sales agent in connection with the negotiations leading to this Agreement or
the consummation of the transactions contemplated hereby.


 


ARTICLE IV

CERTAIN COVENANTS AND AGREEMENTS


 


Section 4.1             Further
Assurances; Cooperation.  Subject to the other provisions
hereof, Seller, Parent, and Purchaser agree to use commercially reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done as promptly as practicable, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this
Agreement.  If at any time after the date
hereof any further action is necessary or desirable to carry out the purposes
of this Agreement, the parties to this Agreement shall take all such necessary
action.  Without limiting the foregoing,
the parties shall execute, acknowledge and deliver any further deeds,
assignments, conveyances, and other assurances, documents and instruments of
transfer, reasonably requested by the other party hereto, and will take, or
cause to be taken, any other action consistent with the terms of this Agreement
that may reasonably be requested by the other parties, for the purpose of
assigning, transferring, granting, conveying, and confirming to Purchaser, or
reducing to possession, any or all interests in the Assets to be conveyed and
transferred by this Agreement.  Seller, Parent,
and Purchaser shall each use their best efforts to forward promptly to the
other party all notices, claims, correspondence and other materials which are
received and determined to pertain to the other party.


 


Section 4.2             Public
Announcements; Confidentiality.


 


(a)           Subject
to its legal obligations, each party shall consult with the other parties with
respect to the timing and content of all announcements regarding this Agreement
or the transactions contemplated hereby to the financial community, employees,
customers, suppliers or the general public and shall use reasonable efforts to
agree upon the text of any such announcement prior to its release.


 


(b)           Seller, Parent, and
Purchaser and their respective employees and agents shall each hold in strict confidence
all records, books, contracts, instruments, computer data and other data and
information (collectively, “Information”)
concerning the other party or the Assets in their possession or furnished by
the other or the other’s representative pursuant to this Agreement with the
same degree of care as such party utilizes as to such party’s own confidential
information (except to the extent that such Information is (i) in the
public domain through no fault of such party or (ii) later lawfully
acquired from any other source by such party), and each party shall not release
or disclose such Information to any other person, except such party’s auditors,
attorneys, financial advisors, bankers, other consultants and advisors or
persons with whom such party has a valid obligation to disclose such
Information, unless compelled to disclose such Information by judicial or
administrative process or, as advised by its counsel, by other requirements of
law (in which event the party that is required to make such disclosure shall
promptly inform the other party of such requirement).


 


Section 4.3             Name Change.  Promptly after the Closing Date, and in any
event not later than three business days after the Closing Date, Parent and
Seller (a) will take all action necessary to change the name of Seller to
a name other than Domain.com, Inc., which name shall not contain any
expansions,


 


5
















 


contractions or
derivations thereof, nor any other name, trade name, trade dress or domain name
confusingly or apparently similar thereto, (b) will notify CT Corporation
and any other agents that its name has been so changed, and (c) will cease
using any such name for any purpose. 
Parent and Seller will promptly take such reasonable further steps to
confirm Seller’s change of name as Purchaser reasonably requests.  From and after the Closing, neither Parent
nor Seller shall use the name “Domain.com, Inc.” nor any expansions,
contractions or derivations thereof, nor any other name, trade name, trade
dress or domain name confusingly or apparently similar thereto.  In order to comply with the requirements of
this Section 4.3, Seller and Parent shall use commercially reasonable
efforts to obtain any necessary third party consents and approvals, and shall,
promptly after obtaining such consent or approval, if at all, and to the extent
assignable, assign to Purchaser the name, or licenses to use the name, if applicable,
of Seller that is used by Seller as of the Closing in the operation of the
Business.


 


Section 4.4             Reimbursed Expenses. During
the period from the Closing until the five (5) year anniversary of the
date hereof, Parent and Seller covenant and agree to reimburse Purchaser,
promptly (and in any event not later than five business days) after Purchaser
provides to Seller supporting documentation for such expenses, for any
out-of-pocket costs incurred by Purchaser in the furtherance, perfection,
improvement, defense or prosecution of any rights with respect to title
to, or the use and enjoyment of, any of the Assets, including personal costs
and expenses incurred by A. Emmet Stephenson in connection with such
matters, costs of third party service providers, filing and similar
fees and costs, and reasonable attorneys’ fees and costs, but excluding any
expenses incurred in connection with any dispute between Purchaser, on the one
hand, and Parent and Seller (or either of them), on the other hand, under this
Agreement; provided, however, that the maximum aggregate amount
that shall be reimbursed by Parent and Seller pursuant to this Section 4.4
shall in no event exceed $100,000 (the “Maximum Reimbursement
Amount”); provided, further, that upon any change of
control of Parent prior to the five (5) year anniversary of the date
hereof, Parent and Seller covenant and agree to pay to Purchaser an aggregate
amount, if any, equal to (i) the Maximum Reimbursement Amount minus (ii) all
amounts previously reimbursed to Purchaser pursuant to this Section 4.4.
For purposes of this Agreement “change of control of Parent” shall mean (i) the
sale of all or substantially all of the assets of Parent; (ii) a sale of
equity of Parent resulting in more than 50% of the voting stock of Parent being
held by an unaffiliated person; or (iii) a merger or consolidation of
Parent with or into an unaffiliated person.


 


ARTICLE
V

INDEMNIFICATION


 


Section 5.1             Indemnification; Generally.
Purchaser covenants and agrees to indemnify, defend, protect and hold harmless
Seller, and Seller’s officers, directors, employees, stockholders, agents,
representatives and affiliates (each, a “Seller Indemnitee”)
at all times from and after the date of this Agreement from and against all
losses, liabilities, damages, claims, actions, suits, proceedings, demands,
assessments, adjustments, costs and expenses (including specifically, but
without limitation, reasonable attorneys’ fees and expenses of investigation)
(collectively, “Losses”) incurred by any Seller
Indemnitee as a result of or arising from (a) Purchaser’s breach of its
representations and warranties set forth herein, (b) Purchaser’s breach or
non-fulfillment of any covenant or agreement under this Agreement, or (c) Purchaser’s
failure to assume any Liability with respect to the operation of the Business
or the use of the Assets after the Closing. 
Parent and Seller covenant and agree to jointly and severally indemnify,
defend, protect and hold harmless Purchaser, and Purchaser’s officers,
directors, employees, 


 


6

















 


stockholders,
agents, representatives and affiliates (each, a “Purchaser
Indemnitee”) at all times from and after the date of this Agreement
from and against all Losses incurred by any Purchaser Indemnitee as a result of
or arising from (a) any breach of Parent’s or Seller’s representations and
warranties set forth herein, (b) Parent’s or Seller’s breach or
non-fulfillment of any covenant or agreement under this Agreement, (c) any
Liability remaining with Seller with respect to the Business or the use of the
Assets prior to the Closing if such Liability is asserted against Purchaser,
except with respect to any Liability as to which Purchaser had knowledge and
did not disclose to Seller or Parent and as to which neither Seller nor Parent
had knowledge independently of Purchaser, or (d) the auction process
conducted by Parent and Seller related to the potential sale of the Assets or
the equity of Seller, including without limitation any claim brought by any
shareholder of Parent, invitee, participant, or bidder in connection with such
auction process.


 


Section 5.2             Survival. The
representations and warranties of each party shall survive until the date that
is five (5) years from the date hereof. 
The covenants made by each party in this Agreement and any claim with
respect to fraud or willful misrepresentation shall survive indefinitely.  Notwithstanding the foregoing, if, prior to
the close of business on the applicable expiration date, an Indemnitee (either
Purchaser Indemnitee or Seller Indemnitee) shall have been notified of a claim
for indemnity hereunder and such claim shall not have been finally resolved or
disposed of at such date, such claim shall continue to survive and shall remain
a basis for indemnity hereunder until such claim is finally resolved or
disposed of in accordance with the terms hereof.


 


Section 5.3             Indemnification Procedures.  Whenever any claim arises which is subject to
indemnification pursuant to the provisions of this Article 5, (an “Indemnification Claim”), the party seeking indemnification
(the “Indemnified Party”) shall promptly,
and in any event within twenty-five (25) days, notify the party or parties from
which indemnification is sought (both singly and collectively, the “Indemnifying Party”) in writing of the nature of the
Indemnification Claim (the “Notice of Claim”).  The Notice of Claim shall specify the
material facts known to the Indemnified Party concerning the Indemnification
Claim.  The failure of an Indemnified Party
to so notify the Indemnifying Party of an Indemnification Claim shall not
relieve the Indemnifying Party of any obligation to indemnify except to the
extent the Indemnifying Party is prejudiced by such failure in the event the
Notice of Claim is not received by the Indemnifying Party within the time
period described above.  Within thirty
(30) days after receipt of a Notice of Claim, the Indemnifying Party shall
notify the Indemnified Party in writing whether it accepts and assumes the
obligation to indemnify in whole or in part, and stating the reasons for a
rejection, or any limitation on assumption or reservation of rights.  To the extent that the Indemnifying Party
denies, or fails to accept and assume its obligation to indemnify and assume
the defense of the Indemnified Party (provided that the parties acknowledge
that the reservation of rights shall not be deemed a failure to accept and
assume its obligations), the Indemnified Party may proceed to take such
actions, including retaining legal counsel, to defend or otherwise represent it
in connection with the Indemnification Claim. 
The Indemnified Party shall be entitled, at its expense, to participate
in any proceeding or investigation, the defense of which has been assumed by
the Indemnifying Party.  To the extent
that the Indemnifying Party acknowledges the Indemnified Party’s right to
indemnification with respect to such Indemnification Claim, the Indemnifying
Party shall assume the defense of such Indemnification Claim with counsel
reasonably satisfactory to the Indemnified Party, and the Indemnified Party
shall cooperate to the extent reasonably requested by the Indemnifying Party in
the defense or prosecution of such Indemnification Claim, but the Indemnified
Party shall be reimbursed by the Indemnifying Party for its reasonable
out-of-pocket 


 


7

















 


costs in
connection with such cooperation.  To the
extent that the Indemnifying Party acknowledges the Indemnified Party’s right
to indemnification and elects to assume the defense of such Indemnification
Claim, the Indemnified Party shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the sole
expense of the Indemnified Party, unless there is, under applicable standards
of professional conduct, a material ethical conflict on any significant issue
between the Indemnifying Party and the Indemnified Party that makes it improper
for one counsel (as determined by such counsel in writing) to represent both
parties, in which case the reasonable fees and expenses of such counsel shall
be at the expense of the Indemnifying Party. 
To the extent that the Indemnifying Party has assumed the defense of any
Indemnification Claim against the Indemnified Party, the Indemnifying Party
shall have the right to settle any Indemnification Claim, but, to the extent
that such settlement requires, or purports to obligate, the Indemnified Party
to take, or prohibits, or purports to prohibit, the Indemnified Party from taking,
any action, then the Indemnifying Party shall not settle such Indemnification
Claim without the prior written consent of the Indemnified Party, which consent
shall not be unreasonably withheld, conditioned or delayed.  To the extent that the Indemnifying Party
does not assume the defense of a third-party Indemnification Claim and disputes
the Indemnified Party’s right to indemnification, the Indemnifying Party shall
have the right to participate in the defense of such Indemnification Claim
through counsel of its choice, at the Indemnifying Party’s expense, and the
Indemnified Party shall have control over the litigation and authority to
resolve such Indemnification Claim, subject to the terms of this Section. 
Notwithstanding anything to the contrary in this Section, to the extent
that an Indemnification Claim is covered by insurance and the carrier has
accepted the Indemnification Claim, the parties agree, with respect to
selection of counsel, to comply with the terms of the insurance policy.


 


Section 5.4             Limitation on Indemnity.  Regardless of any other provision of this
Agreement and absent fraud, the maximum amount that Seller and Parent will be
required to pay to Purchaser under the provisions of this Article 5 is
$2,000,000.  Regardless of any other
provision of this Agreement and absent fraud, the maximum amount that Purchaser
will be required to pay to Seller under the provisions of this Article 5
is $750,000.


 


Section 5.5             Exclusive Remedy.  Absent fraud, the remedies provided by this Article 5
constitute the exclusive remedy for a breach of this Agreement by any party,
except for injunctive relief.


 


ARTICLE VI


MISCELLANEOUS


 


Section 6.1             Notices. All notices and
communications required or permitted hereunder shall be in writing and deemed
given when received by means of the United States mail, addressed to the party
to be notified, postage prepaid and registered or certified with return receipt
requested, or personal delivery, or overnight courier, as follows:


 


	
  If to Parent or

  	
   

  	
   

  
	
  Seller, to:

  	
   

  	
  StarTek, Inc.

  
	
   

  	
   

  	
  44 Cook Street, 4th
  Floor

  
	
   

  	
   

  	
  Denver, Colorado 80206

  
	
   

  	
   

  	
  Attention: David G.
  Durham

  
	
   

  	
   

  	
  Phone: (303) 262-4149

  
	
   

  	
   

  	
  Fax: (303) 316-4812

  
	
   

  	
   

  	
  Email:
  david.durham@startek.com

  



 


8

















 


	
  With a copy to:

  	
   

  	
  StarTek, Inc.

  
	
   

  	
   

  	
  44 Cook Street, 4th Floor

  
	
   

  	
   

  	
  Denver, Colorado 80206

  
	
   

  	
   

  	
  Attention: General
  Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hogan &
  Hartson

  
	
   

  	
   

  	
  1200 17th Street,
  Suite 1500

  
	
   

  	
   

  	
  Denver, CO 80202

  
	
   

  	
   

  	
  Attention: Paul Hilton

  
	
   

  	
   

  	
  Phone: (303) 454-2414

  
	
   

  	
   

  	
  Fax: (303) 899-7333

  
	
   

  	
   

  	
  E-mail:
  philton@hhlaw.com

  
	
   

  	
   

  	
   

  
	
  If to Purchaser, to:

  	
   

  	
  A. Emmet
  Stephenson, Jr., Inc.

  
	
   

  	
   

  	
  400 Nevada Way

  
	
   

  	
   

  	
  Boulder City, NV 89005

  
	
   

  	
   

  	
  Phone: 702-302-1400

  
	
   

  	
   

  	
  Fax: 702-441-1800

  
	
   

  	
   

  	
  Email: emmet@great.net

  
	
   

  	
   

  	
   

  
	
  With copy to:

  	
   

  	
  Al Leraaen

  
	
   

  	
   

  	
  513 Annet Street

  
	
   

  	
   

  	
  Henderson, NV 89052

  
	
   

  	
   

  	
  Phone: 702-677-1400

  
	
   

  	
   

  	
  Fax: 702-441-1800

  
	
   

  	
   

  	
  Email: al@great.net

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sherman & Howard L.L.C.

  
	
   

  	
   

  	
  633 17th Street, Suite 3000

  
	
   

  	
   

  	
  Denver, CO 80202

  
	
   

  	
   

  	
  Attention: James F. Wood

  
	
   

  	
   

  	
  Phone: 303-299-8154

  
	
   

  	
   

  	
  Fax: 303-298-0940

  
	
   

  	
   

  	
  Email: jwood@sah.com

  



 


Section 6.2             No Waiver. Except as
otherwise provided herein, no delay of or omission in the exercise of any
right, power or remedy accruing to any party as a result of any breach or
default by any other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed as a waiver of or acquiescence in
any such breach or default, or of any similar breach or default 


 


9

















 


occurring later;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default occurring before or after that waiver.


 


Section 6.3             Severability. In case any
provision of this Agreement shall be invalid, illegal or unenforceable, it
shall, to the extent possible, be modified in such manner as to be valid, legal
and enforceable but so as to most nearly retain the intent of the parties, and
if such modification is not possible, such provision shall be severed from this
Agreement, and in either case the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.


 


Section 6.4             Entire Agreement; Amendment.
This Agreement contains the entire understanding of the parties relating to the
subject matter contained herein. This Agreement cannot be amended or changed
except through a written instrument signed by all of the parties hereto.


 


Section 6.5             Assignment. No party may
assign his or its rights or obligations hereunder, in whole or in part, without
the prior written consent of the other parties.


 


Section 6.6             Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, without giving effect to principles of conflicts or choice
of laws thereof.


 


Section 6.7             Counterparts. This Agreement
may be executed in one or more counterparts, with the same effect as if all
parties had signed the same document. Each such counterpart shall be an
original, but all such counterparts taken together shall constitute a single
agreement. In the event that any signature is delivered by electronic scanning
or facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile
signature page was an original thereof.


 


Section 6.8             Section Headings and
Gender. The Section headings used herein are inserted for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement. All personal pronouns used in this Agreement shall include the
other genders, whether used in the masculine, feminine or neuter, and the
singular shall include the plural, and vice versa, whenever and as often as may
be appropriate.


 


Section 6.9             Construction. The parties
hereto have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof will arise favoring or disfavoring any party
because of the authorship of any provision of this Agreement. Any reference to
any federal, state, local, or foreign law will be deemed also to refer to law
as amended and all rules and regulations promulgated thereunder, unless
the context requires otherwise. The words “include,” “includes,” and “including”
will be deemed to be followed by “without limitation.” The words “this
Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The parties hereto intend that each
representation, warranty, and covenant contained herein will have independent
significance. If any party hereto has breached any representation, warranty, or
covenant contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter (regardless
of the relative levels of specificity) which that party has not breached will
not 


 


10

















 


detract from or
mitigate the fact that such party is in breach of the first representation,
warranty, or covenant.  The terms “knowledge
of Seller” or “known by Seller” shall exclude any matter that is known by A. Emmet Stephenson Jr. if no other employee
of Seller or Parent knows of such matter. 
The terms “knowledge of Purchaser” or “Purchaser has knowledge” shall include
the knowledge of A. Emmet Stephenson Jr.


 


Section 6.10           Arbitration.  The parties shall resolve any dispute that
arises under or in connection with this Agreement through final and binding
arbitration (without appeal or review) in Denver, Colorado, administered by The
Judicial Arbiter Group, Inc. (or, if it is unwilling or unable to serve,
then by an independent arbitration tribunal pursuant to the Commercial
Arbitration Rules of the American Arbitration Association) (in either such
case, the “Arbitration Tribunal”).  Whenever a dispute arises under or in
connection with this Agreement, the party desiring to initiate such proceedings
(“requesting party”) shall give notice
thereof to the other party (“responding party”),
stating that the requesting party desires to have such controversy reviewed by
an Arbitration Tribunal and setting forth the name and address of the person
whom such party has designated to act as an arbitrator.  If the parties can agree upon an arbitrator,
the dispute will be arbitrated by the single arbitrator chosen by them.  If, within 15 days after receipt of such
notice, the parties have not been able to agree upon an arbitrator then the
responding party shall designate a person to act as arbitrator by a notice to
the requesting party setting forth the name and address of the person so
designated.  The two arbitrators
designated as aforesaid shall meet within ten days after the second arbitrator
shall be appointed and if within such ten day period they shall not have
resolved the question in dispute, they shall promptly select a third
arbitrator; if they shall not be able to agree on such third arbitrator within
15 days after the second arbitrator shall be appointed, then either
arbitrator on five days’ notice in writing to the other, or both arbitrators,
shall apply to the office of the Arbitration Tribunal in Denver, Colorado, to
designate and appoint such third arbitrator. 
In the event of the failure, refusal or inability of any arbitrator to act,
a new arbitrator will be appointed in his or her stead, such appointment to be
made in the same manner as hereinbefore provided for the appointment of such
arbitrator so failing, refusing or unable to act.  Subject to the right of the prevailing party
to seek reimbursement from the other party as described below, the parties
agree to share equally the costs, including fees, of the Arbitration Tribunal
selected or appointed under this Section. 
As soon as practicable after selection of the Arbitration Tribunal, the
Arbitration Tribunal or its designated representative shall determine a
reasonable estimate of the anticipated fees and costs, and send a statement to
each party setting forth that party’s equal share of the fees and costs.  Within ten days after receipt of the
statement, each party shall deposit the required sum with the Arbitration
Tribunal, as applicable.  Notwithstanding
the foregoing, the prevailing party in any arbitration, suit or other action
arising out of or related to this Agreement shall be entitled to recover from
the other party all reasonable fees, costs and expenses incurred by the
prevailing party in connection with the arbitration, suit or other action,
including reasonable judicial and extra-judicial attorneys’ fees, expenses and
disbursements and fees, costs and expenses relating to any arbitration or
appeal.  “Prevailing
party” within the meaning of this Section shall include,
without limitation, a party who dismisses an action for recovery hereunder in
exchange for payment of the sums allegedly due, performance of covenants
allegedly breached or consideration substantially equal to the relief sought in
the action.  If any party secures a
judgment in any proceeding brought to enforce or interpret this Agreement, then
any costs or expenses (including reasonable attorneys’ fees) incurred in
enforcing, or in appealing from, such judgment shall be payable by the party
against whom such judgment or determination on appeal has been rendered and
shall be recoverable separately from and in addition to any other amount included
in such judgment.  The decision of
arbitrator(s) selected in the manner 


 


11

















 


hereinbefore
provided shall be given within a period of 30 days (i) after the
appointment of the third arbitrator or (ii) in the case of sole
arbitrator, within 30 days after the date when it is first established
that he or she is the sole arbitrator. 
The decision of such Arbitration Tribunal shall be final and binding
upon the parties and shall be enforceable in any court of competent
jurisdiction.   The Arbitration Tribunal
shall have the right only to interpret and apply the terms of this Agreement
and shall not change any such terms or deprive any party to this Agreement of
any rights provided in this Agreement. 
Further, the authority of the Arbitration Tribunal shall be limited to
deciding the matter submitted to it.  THE
ARBITRATION TRIBUNAL SHALL HAVE NO AUTHORITY TO AWARD ANY PUNITIVE, EXEMPLARY,
STATUTORY OR TREBLE DAMAGES OR TO VARY OR IGNORE THE TERMS OF THIS AGREEMENT,
AND SHALL BE BOUND BY CONTROLLING LAW. 
ALL PROCEEDINGS, AWARDS AND DECISIONS UNDER ANY MEDIATION OR ARBITRATION
PROCEEDING SHALL BE STRICTLY PRIVATE AND CONFIDENTIAL, EXCEPT TO THE EXTENT
REQUIRED BY LAW.  Notwithstanding
anything in this Section to the contrary, the parties shall have the right
to commence litigation or other legal proceedings with respect to any claims
solely relating to: (i) injunctive relief, (ii) enforcement of the
dispute resolution provisions of this Agreement, and (iii) enforcement of
any arbitration award.


 


[The remainder of this page is
intentionally left blank.  Signature pages follow.]


 


12

















 


IN WITNESS WHEREOF, the
parties hereto have hereunto set their hands as of the day and year first above
written.


 


	
   

  	
  A.
  EMMET STEPHENSON JR., INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Emmet Stephenson
  Jr.

  
	
   

  	
  Name:

  	
  A. Emmet
  Stephenson, Jr.

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DOMAIN.COM,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David G. Durham

  
	
   

  	
  Name:

  	
  David G. Durham

  
	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STARTEK,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David G. Durham

  
	
   

  	
  Name:

  	
  David G. Durham

  
	
   

  	
  Title:

  	
  Executive Vice
  President / Chief Financial Officer

  



 


 


SIGNATURE
PAGE TO ASSET PURCHASE AGREEMENT