**Exhibit 10.1**

 

**ASSETPURCHASE AGREEMENT**

 

ThisASSET PURCHASE AGREEMENT,dated as of February 25, 2009 (this “**Agreement**”), ismade 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 businessprocess outsourcing services to the communications industry and is the owner ofall of the issued and outstanding capital stock of Seller;

 

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

 

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

 

NOW,THEREFORE, inconsideration of the premises and the covenants, promises, and agreementsherein set forth and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto, intendinglegally to be bound, agree as follows.

 

# **ARTICLE IPURCHASE 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 theconditions provided below, Seller shall convey, assign, transfer and deliver toPurchaser 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 shallpay 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 withrespect to the Assets through the Closing (as defined below), and Purchasershall be entitled to retain all revenues that are received with respect to theAssets after the Closing (determined in both cases by using a cash basis methodof accounting).

 

Section 1.2             Assumed Liabilities.Purchaser assumes from Seller, and Seller assigns to Purchaser, all liabilitiesand 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 anddischarge the Assumed Liabilities as and when they become due and to indemnifySeller against all claims, losses and expenses relating to the AssumedLiabilities.  Notwithstanding anything tothe contrary in this Agreement, (a) all Assumed Liabilities that are nottransferable without consent from any other party or parties thereto shall bedeemed to have been assigned and assumed as of the date hereof, irrespective ofany failure to obtain such consent, and (b) all liabilities of Seller thatare not Assumed Liabilities will remain the obligation of Seller.

 

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Section 1.3             Closing. The closing of thesale and purchase of the Assets under this Agreement (the **“Closing”**) shall take place on the datehereof.  The effective time of thetransactions contemplated hereby shall be at 12:01 a.m., Mountain Time, onthe date hereof (the “**Effective Time**”).  At the Closing, Seller shalldeliver 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 andAssumed Liabilities.  At the Closing,Purchaser shall deliver or cause to be delivered to Seller the Purchase Pricein cash and the Bill of Sale, duly executed by Purchaser.

 

Section 1.4             Allocation of Purchase Price.  The Purchase Price will be allocated for taxpurposes in accordance with the allocation schedule attached to be prepared byPurchaser and to be delivered to Seller and Parent not later than ten businessdays after the Closing.  Purchaser willensure that the allocation schedule is prepared in accordance with Section 1060of the Internal Revenue Code.  After theClosing, the parties will make consistent use of the allocation, fair marketvalue and useful lives specified in such schedule for all tax purposes and inall filings, declarations and reports with the Internal Revenue Service (**“IRS”**) in respect to the transactions contemplated by thisAgreement, including the reports required to be filed under Section 1060of the Internal Revenue Code.  Purchaserwill 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 tothe determination of any tax, none of Purchaser, Seller or Parent shall contendor represent that such allocation is not a correct allocation.

 

# **ARTICLE IIREPRESENTATIONS AND WARRANTIES OF PURCHASER**

# ** **

Purchaser represents andwarrants 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 thedocuments to be executed and delivered by Purchaser pursuant to thetransactions contemplated hereby. This Agreement and the documents to beexecuted and delivered by Purchaser pursuant to the transactions contemplatedhereby have been duly executed and delivered by Purchaser and, assuming dueauthorization, execution and delivery hereof and thereof by the other partieshereto and thereto, constitutes the valid and binding agreement of Purchaser,enforceable against Purchaser in accordance with their terms.

 

Section 2.2             Absence of Restrictions andConflicts. The execution and delivery by Purchaser of this Agreement andthe documents to be executed and delivered by Purchaser pursuant to thetransactions contemplated hereby do not, and the performance of each ofPurchaser’s obligations hereunder and thereunder will not, (a) conflictwith or violate any law applicable to Purchaser or by which any property orasset of Purchaser is bound, or (b) violate or conflict with, constitute abreach of or default under, result in the loss of any benefit under, permit theacceleration of any obligation under or create in any party the right toterminate, modify or cancel, (i) any contract, will, agreement, permit,franchise, license or other instrument applicable to Purchaser (ii) anyjudgment, decree or order of any governmental entity to which Purchaser is aparty or by which any of its properties are bound or (iii) arbitrationaward applicable to Purchaser.

 

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

 

Section 2.4             Formation and Transfer ofCorporations. Purchaser (a) acknowledges and agrees that Seller hasformed certain corporations under the laws of the state of Delaware under thedirection of an affiliate of Purchaser (the “**CorporateNames**”), (b) waives any right to seek indemnification fromSeller and Parent under this Agreement with respect to any Loss (as definedbelow) to the extent that such Loss arises in connection with the incorporationof any Corporate Names and (c) shall indemnify and hold harmless theSeller and its affiliates from any and all Losses (regardless of whether theliability, cost or expense relates to the period before or after the date ofthis Agreement) relating in any way to the formation or filing or payment ofstate franchise tax obligations related to the Corporate Names.

 

Section 2.5             As Is, Where Is. PURCHASERHEREBY ACKNOWLEDGES AND AGREES THAT, BASED ON PURCHASER’S INDEPENDENTINVESTIGATION OF THE ASSETS AND THE BUSINESS, SELLER IS SELLING AND PURCHASERIS PURCHASING THE ASSETS ON AN “AS IS, WHERE IS” BASIS WITHOUT ANYREPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TOANY MATTER RELATING TO THE ASSETS OR THE BUSINESS, INCLUDING INCOME TO BEDERIVED OR EXPENSES TO BE INCURRED IN CONNECTION WITH THE ASSETS, THE PHYSICALCONDITION OF ANY OF THE ASSETS, THE VALUE OF THE ASSETS (OR ANY PORTIONTHEREOF), THE MERCHANTABILITY OR FITNESS OF THE ASSETS FOR ANY PARTICULARPURPOSE, EXCEPT AS SUCH MATTERS MAY BE AFFECTED BY THE REPRESENTATIONS ANDWARRANTIES 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 obligationof Parent, Seller or Purchaser to pay any finder’s fees, brokerage or agent’scommissions or other like payments to any finder, broker or sales agent inconnection with the negotiations leading to this Agreement or the consummationof the transactions contemplated hereby.

 

# **ARTICLE IIIREPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT**

# ** **

Seller and Parent jointlyand 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 deliverthis Agreement and the documents to be executed pursuant to the transactionscontemplated hereby, to perform their obligations hereunder and thereunder, andto consummate the transactions contemplated hereby.  This Agreement and the documents to beexecuted and delivered by Seller pursuant to the transactions contemplatedhereby have been duly approved by all requisite corporate action of Seller,including approval by the board of directors of Seller, and have been executedand delivered by Seller and, assuming due authorization, execution and deliveryhereof and thereof by the other parties hereto and 

 

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

 

Section 3.2             Absence of Restrictions andConflicts. The execution and delivery by Seller of this Agreement and thedocuments to be executed and delivered by Seller pursuant to the transactionscontemplated hereby does not, and the performance of each of Seller’sobligations hereunder and thereunder will not, (a) conflict with orviolate any provision of the certificate of incorporation or bylaws of Seller, (b) conflictwith or violate any law applicable to Seller or by which any property or assetof Seller is bound, or (c) violate or conflict with, constitute a breachof or default under, result in the loss of any benefit under, permit theacceleration 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 bywhich any of its properties are bound or (iii) any arbitration awardapplicable to Seller.

 

Section 3.3             Title to Assets.  The Assets are free and clear of all liensand encumbrances; provided, however, that Purchaser acknowledgesand agrees that the Assets are subject to the terms of the contracts thatconstitute 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 withthe Delaware Secretary of State.** **Seller has exclusive ownership ofthe registration rights to each of the domain names listed on **Schedule 1.1**, and all rights to renew the registration ofeach such domain name.  Upon executionand delivery of the Bill of Sale to Purchaser, (i) exclusive ownership ofthe registration rights to each of the domain names listed on **Schedule 1.1** (including but not limited to the passwords andauthorization codes for the domain names and all rights to renew the domainnames) will be conveyed to Purchaser and (ii) Seller’s right, title andinterest in all other Assets will be conveyed to Purchaser, subject only toPurchaser’s waiver of rights in Section 2.4(b).

 

Section 3.4             Absence of Undisclosed Liabilities.  Seller has noliability, 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 forany such Liability, that would affect the transfer to Purchaser of Seller’stitle to the Assets or the use and enjoyment of the Assets by Purchaser, exceptfor any such Liability as to which Purchaser has knowledge prior to theClosing.  For clarity, except forLiabilities known to Purchaser prior to the Closing and not disclosed to Sellerprior to the Closing, the parties intend that Seller and Parent shall beresponsible under Section 5.1 for any Liability that is based on facts,circumstances, or conditions prior to the Closing, and that Purchaser shall beresponsible for any Liability that is based on facts, circumstances, orconditions after the Closing.

 

Section 3.5             Litigation.  Except as setforth 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, whetherpublic or private, or whether before a governmental body or arbitrator),pending or to the knowledge of Seller, threatened, against or relating to theAssets, or that challenges, or would reasonably be expected to have the effectof preventing, delaying, making illegal or otherwise interfering with, thetransfer to Purchaser of Seller’s title to the Assets or the use and enjoymentof the Assets by Purchaser, except for any such matters as to which Purchaserhas knowledge.

 

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

 

# **ARTICLE IVCERTAIN COVENANTS AND AGREEMENTS**

# ** **

Section 4.1             FurtherAssurances; Cooperation.  Subject to the other provisionshereof, Seller, Parent, and Purchaser agree to use commercially reasonable bestefforts to take, or cause to be taken, all actions, and to do, or cause to bedone as promptly as practicable, all things necessary, proper or advisable toconsummate and make effective the transactions contemplated by thisAgreement.  If at any time after the datehereof any further action is necessary or desirable to carry out the purposesof this Agreement, the parties to this Agreement shall take all such necessaryaction.  Without limiting the foregoing,the parties shall execute, acknowledge and deliver any further deeds,assignments, conveyances, and other assurances, documents and instruments oftransfer, reasonably requested by the other party hereto, and will take, orcause to be taken, any other action consistent with the terms of this Agreementthat may reasonably be requested by the other parties, for the purpose ofassigning, transferring, granting, conveying, and confirming to Purchaser, orreducing to possession, any or all interests in the Assets to be conveyed andtransferred by this Agreement.  Seller, Parent,and Purchaser shall each use their best efforts to forward promptly to theother party all notices, claims, correspondence and other materials which arereceived and determined to pertain to the other party.

 

Section 4.2             PublicAnnouncements; Confidentiality.

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

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### (b)           Seller, Parent, andPurchaser and their respective employees and agents shall each hold in strict confidenceall records, books, contracts, instruments, computer data and other data andinformation (collectively, “**Information**”)concerning the other party or the Assets in their possession or furnished bythe other or the other’s representative pursuant to this Agreement with thesame degree of care as such party utilizes as to such party’s own confidentialinformation (except to the extent that such Information is (i) in thepublic domain through no fault of such party or (ii) later lawfullyacquired from any other source by such party), and each party shall not releaseor disclose such Information to any other person, except such party’s auditors,attorneys, financial advisors, bankers, other consultants and advisors orpersons with whom such party has a valid obligation to disclose suchInformation, unless compelled to disclose such Information by judicial oradministrative process or, as advised by its counsel, by other requirements oflaw (in which event the party that is required to make such disclosure shallpromptly inform the other party of such requirement).

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

 

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contractions orderivations thereof, nor any other name, trade name, trade dress or domain nameconfusingly or apparently similar thereto, (b) will notify CT Corporationand any other agents that its name has been so changed, and (c) will ceaseusing any such name for any purpose. Parent and Seller will promptly take such reasonable further steps toconfirm Seller’s change of name as Purchaser reasonably requests.  From and after the Closing, neither Parentnor Seller shall use the name “Domain.com, Inc.” nor any expansions,contractions or derivations thereof, nor any other name, trade name, tradedress or domain name confusingly or apparently similar thereto.  In order to comply with the requirements ofthis Section 4.3, Seller and Parent shall use commercially reasonableefforts to obtain any necessary third party consents and approvals, and shall,promptly after obtaining such consent or approval, if at all, and to the extentassignable, 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 theBusiness.

 

Section 4.4             Reimbursed Expenses. Duringthe period from the Closing until the five (5) year anniversary of thedate hereof, Parent and Seller covenant and agree to reimburse Purchaser,promptly (and in any event not later than five business days) after Purchaserprovides to Seller supporting documentation for such expenses, for anyout-of-pocket costs incurred by Purchaser in the furtherance, perfection,improvement, defense or prosecution of any rights with respect to titleto, or the use and enjoyment of, any of the Assets, including personal costsand expenses incurred by A. Emmet Stephenson in connection with suchmatters, costs of third party service providers, filing and similarfees and costs, and reasonable attorneys’ fees and costs, but excluding anyexpenses incurred in connection with any dispute between Purchaser, on the onehand, and Parent and Seller (or either of them), on the other hand, under thisAgreement; provided, however, that the maximum aggregate amountthat shall be reimbursed by Parent and Seller pursuant to this Section 4.4shall in no event exceed $100,000 (the “**Maximum ReimbursementAmount**”); provided, further, that upon any change ofcontrol of Parent prior to the five (5) year anniversary of the datehereof, Parent and Seller covenant and agree to pay to Purchaser an aggregateamount, if any, equal to (i) the Maximum Reimbursement Amount minus (ii) allamounts previously reimbursed to Purchaser pursuant to this Section 4.4.For purposes of this Agreement “change of control of Parent” shall mean (i) thesale of all or substantially all of the assets of Parent; (ii) a sale ofequity of Parent resulting in more than 50% of the voting stock of Parent beingheld by an unaffiliated person; or (iii) a merger or consolidation ofParent with or into an unaffiliated person.

 

# **ARTICLEVINDEMNIFICATION**

# ** **

Section 5.1             Indemnification; Generally.Purchaser covenants and agrees to indemnify, defend, protect and hold harmlessSeller, 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 alllosses, liabilities, damages, claims, actions, suits, proceedings, demands,assessments, adjustments, costs and expenses (including specifically, butwithout limitation, reasonable attorneys’ fees and expenses of investigation)(collectively, “**Losses**”) incurred by any SellerIndemnitee as a result of or arising from (a) Purchaser’s breach of itsrepresentations and warranties set forth herein, (b) Purchaser’s breach ornon-fulfillment of any covenant or agreement under this Agreement, or (c) Purchaser’sfailure to assume any Liability with respect to the operation of the Businessor 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, 

 

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

 

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

 

Section 5.3             Indemnification Procedures.  Whenever any claim arises which is subject toindemnification 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 fromwhich indemnification is sought (both singly and collectively, the “**Indemnifying Party**”) in writing of the nature of theIndemnification Claim (the **“Notice of Claim”**).  The Notice of Claim shall specify thematerial facts known to the Indemnified Party concerning the IndemnificationClaim.  The failure of an Indemnified Partyto so notify the Indemnifying Party of an Indemnification Claim shall notrelieve the Indemnifying Party of any obligation to indemnify except to theextent the Indemnifying Party is prejudiced by such failure in the event theNotice of Claim is not received by the Indemnifying Party within the timeperiod described above.  Within thirty(30) days after receipt of a Notice of Claim, the Indemnifying Party shallnotify the Indemnified Party in writing whether it accepts and assumes theobligation to indemnify in whole or in part, and stating the reasons for arejection, or any limitation on assumption or reservation of rights.  To the extent that the Indemnifying Partydenies, or fails to accept and assume its obligation to indemnify and assumethe defense of the Indemnified Party (provided that the parties acknowledgethat the reservation of rights shall not be deemed a failure to accept andassume its obligations), the Indemnified Party may proceed to take suchactions, including retaining legal counsel, to defend or otherwise represent itin connection with the Indemnification Claim. The Indemnified Party shall be entitled, at its expense, to participatein any proceeding or investigation, the defense of which has been assumed bythe Indemnifying Party.  To the extentthat the Indemnifying Party acknowledges the Indemnified Party’s right toindemnification with respect to such Indemnification Claim, the IndemnifyingParty shall assume the defense of such Indemnification Claim with counselreasonably satisfactory to the Indemnified Party, and the Indemnified Partyshall cooperate to the extent reasonably requested by the Indemnifying Party inthe defense or prosecution of such Indemnification Claim, but the IndemnifiedParty shall be reimbursed by the Indemnifying Party for its reasonableout-of-pocket 

 

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costs inconnection with such cooperation.  To theextent that the Indemnifying Party acknowledges the Indemnified Party’s rightto indemnification and elects to assume the defense of such IndemnificationClaim, the Indemnified Party shall have the right to employ its own counsel inany such case, but the fees and expenses of such counsel shall be at the soleexpense of the Indemnified Party, unless there is, under applicable standardsof professional conduct, a material ethical conflict on any significant issuebetween the Indemnifying Party and the Indemnified Party that makes it improperfor one counsel (as determined by such counsel in writing) to represent bothparties, in which case the reasonable fees and expenses of such counsel shallbe at the expense of the Indemnifying Party. To the extent that the Indemnifying Party has assumed the defense of anyIndemnification Claim against the Indemnified Party, the Indemnifying Partyshall have the right to settle any Indemnification Claim, but, to the extentthat such settlement requires, or purports to obligate, the Indemnified Partyto take, or prohibits, or purports to prohibit, the Indemnified Party from taking,any action, then the Indemnifying Party shall not settle such IndemnificationClaim without the prior written consent of the Indemnified Party, which consentshall not be unreasonably withheld, conditioned or delayed.  To the extent that the Indemnifying Partydoes not assume the defense of a third-party Indemnification Claim and disputesthe Indemnified Party’s right to indemnification, the Indemnifying Party shallhave the right to participate in the defense of such Indemnification Claimthrough counsel of its choice, at the Indemnifying Party’s expense, and theIndemnified Party shall have control over the litigation and authority toresolve such Indemnification Claim, subject to the terms of this Section. Notwithstanding anything to the contrary in this Section, to the extentthat an Indemnification Claim is covered by insurance and the carrier hasaccepted the Indemnification Claim, the parties agree, with respect toselection of counsel, to comply with the terms of the insurance policy.

 

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

 

Section 5.5             Exclusive Remedy.  Absent fraud, the remedies provided by this Article 5constitute 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 andcommunications required or permitted hereunder shall be in writing and deemedgiven when received by means of the United States mail, addressed to the partyto be notified, postage prepaid and registered or certified with return receiptrequested, 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 |

 

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| *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 asotherwise provided herein, no delay of or omission in the exercise of anyright, power or remedy accruing to any party as a result of any breach ordefault 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 inany such breach or default, or of any similar breach or default 

 

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

 

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

 

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

 

Section 6.5             Assignment. No party mayassign his or its rights or obligations hereunder, in whole or in part, withoutthe prior written consent of the other parties.

 

Section 6.6             Governing Law. ThisAgreement shall be governed by and construed in accordance with the laws of theState of Delaware, without giving effect to principles of conflicts or choiceof laws thereof.

 

Section 6.7             Counterparts. This Agreementmay be executed in one or more counterparts, with the same effect as if allparties had signed the same document. Each such counterpart shall be anoriginal, but all such counterparts taken together shall constitute a singleagreement. In the event that any signature is delivered by electronic scanningor facsimile transmission, such signature shall create a valid and bindingobligation of the party executing (or on whose behalf such signature isexecuted) the same with the same force and effect as if such facsimilesignature page was an original thereof.

 

Section 6.8             Section Headings andGender. The Section headings used herein are inserted for referencepurposes only and shall not in any way affect the meaning or interpretation ofthis Agreement. All personal pronouns used in this Agreement shall include theother genders, whether used in the masculine, feminine or neuter, and thesingular shall include the plural, and vice versa, whenever and as often as maybe appropriate.

 

Section 6.9             Construction. The partieshereto have participated jointly in the negotiation and drafting of thisAgreement. If an ambiguity or question of intent or interpretation arises, thisAgreement will be construed as if drafted jointly by the parties hereto and nopresumption or burden of proof will arise favoring or disfavoring any partybecause of the authorship of any provision of this Agreement. Any reference toany federal, state, local, or foreign law will be deemed also to refer to lawas amended and all rules and regulations promulgated thereunder, unlessthe context requires otherwise. The words “include,” “includes,” and “including”will be deemed to be followed by “without limitation.” The words “thisAgreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similarimport refer to this Agreement as a whole and not to any particular subdivisionunless expressly so limited. The parties hereto intend that eachrepresentation, warranty, and covenant contained herein will have independentsignificance. If any party hereto has breached any representation, warranty, orcovenant contained herein in any respect, the fact that there exists anotherrepresentation, warranty or covenant relating to the same subject matter (regardlessof the relative levels of specificity) which that party has not breached willnot 

 

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

 

Section 6.10           Arbitration.  The parties shall resolve any dispute thatarises under or in connection with this Agreement through final and bindingarbitration (without appeal or review) in Denver, Colorado, administered by TheJudicial Arbiter Group, Inc. (or, if it is unwilling or unable to serve,then by an independent arbitration tribunal pursuant to the CommercialArbitration Rules of the American Arbitration Association) (in either suchcase, the **“Arbitration Tribunal”**).  Whenever a dispute arises under or inconnection with this Agreement, the party desiring to initiate such proceedings(**“requesting party”**) shall give noticethereof to the other party (**“responding party”**),stating that the requesting party desires to have such controversy reviewed byan Arbitration Tribunal and setting forth the name and address of the personwhom 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 suchnotice, the parties have not been able to agree upon an arbitrator then theresponding party shall designate a person to act as arbitrator by a notice tothe requesting party setting forth the name and address of the person sodesignated.  The two arbitratorsdesignated as aforesaid shall meet within ten days after the second arbitratorshall be appointed and if within such ten day period they shall not haveresolved the question in dispute, they shall promptly select a thirdarbitrator; if they shall not be able to agree on such third arbitrator within15 days after the second arbitrator shall be appointed, then eitherarbitrator on five days’ notice in writing to the other, or both arbitrators,shall apply to the office of the Arbitration Tribunal in Denver, Colorado, todesignate 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 bemade in the same manner as hereinbefore provided for the appointment of sucharbitrator so failing, refusing or unable to act.  Subject to the right of the prevailing partyto seek reimbursement from the other party as described below, the partiesagree to share equally the costs, including fees, of the Arbitration Tribunalselected or appointed under this Section. As soon as practicable after selection of the Arbitration Tribunal, theArbitration Tribunal or its designated representative shall determine areasonable estimate of the anticipated fees and costs, and send a statement toeach party setting forth that party’s equal share of the fees and costs.  Within ten days after receipt of thestatement, each party shall deposit the required sum with the ArbitrationTribunal, as applicable.  Notwithstandingthe foregoing, the prevailing party in any arbitration, suit or other actionarising out of or related to this Agreement shall be entitled to recover fromthe other party all reasonable fees, costs and expenses incurred by theprevailing party in connection with the arbitration, suit or other action,including reasonable judicial and extra-judicial attorneys’ fees, expenses anddisbursements and fees, costs and expenses relating to any arbitration orappeal.  **“Prevailingparty”** within the meaning of this Section shall include,without limitation, a party who dismisses an action for recovery hereunder inexchange for payment of the sums allegedly due, performance of covenantsallegedly breached or consideration substantially equal to the relief sought inthe action.  If any party secures ajudgment in any proceeding brought to enforce or interpret this Agreement, thenany costs or expenses (including reasonable attorneys’ fees) incurred inenforcing, or in appealing from, such judgment shall be payable by the partyagainst whom such judgment or determination on appeal has been rendered andshall be recoverable separately from and in addition to any other amount includedin such judgment.  The decision ofarbitrator(s) selected in the manner 

 

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hereinbeforeprovided shall be given within a period of 30 days (i) after theappointment of the third arbitrator or (ii) in the case of solearbitrator, within 30 days after the date when it is first establishedthat he or she is the sole arbitrator. The decision of such Arbitration Tribunal shall be final and bindingupon the parties and shall be enforceable in any court of competentjurisdiction.   The Arbitration Tribunalshall have the right only to interpret and apply the terms of this Agreementand shall not change any such terms or deprive any party to this Agreement ofany rights provided in this Agreement. Further, the authority of the Arbitration Tribunal shall be limited todeciding the matter submitted to it.  THEARBITRATION 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 ARBITRATIONPROCEEDING SHALL BE STRICTLY PRIVATE AND CONFIDENTIAL, EXCEPT TO THE EXTENTREQUIRED BY LAW.  Notwithstandinganything in this Section to the contrary, the parties shall have the rightto commence litigation or other legal proceedings with respect to any claimssolely relating to: (i) injunctive relief, (ii) enforcement of thedispute resolution provisions of this Agreement, and (iii) enforcement ofany arbitration award.

 

*[The remainder of this page isintentionally left blank.  Signature pages follow.]*

 

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IN WITNESS WHEREOF, theparties hereto have hereunto set their hands as of the day and year first abovewritten.

 
|   | **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 |

 

 

SIGNATUREPAGE TO ASSET PURCHASE AGREEMENT

 

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