EXHIBIT 10.48
EMPLOYMENT AGREEMENT
This Agreement is between TeleTech Holdings, Inc., including its
subsidiaries, their successors and assigns, their directors, officers, employees
and agents (the "Company" or "TeleTech") and Xxxxxx O'Dell ("Employee"), and
shall be effective as of February 8, 2001 ("Effective Date").
1. APPOINTMENT.
A. TeleTech hereby employs Employee as Chief Financial Officer and
Executive Vice President, Human Resources, and Employee hereby accepts such
employment with TeleTech.
B. Employee shall devote her full-time and best efforts to the
performance of all duties as shall be assigned to her from time to time by
TeleTech. Unless otherwise specifically authorized in writing by TeleTech,
Employee shall not engage in any other business activity, or otherwise be
gainfully employed.
C. Employee acknowledges that, as part of her employment duties
hereunder, Employee may be required to perform services for, and serve as an
officer and/or director of, subsidiaries and affiliates of TeleTech, on behalf
of and as requested by TeleTech, and Employee agrees to perform such duties.
2. COMPENSATION.
A. SALARY AND SALARY REVIEW. Employee's base salary shall be
$250,000.00 per year, payable in equal installments in accordance with
TeleTech's standard payroll practice, less legally required withholdings.
TeleTech may, in its sole discretion, increase, or decrease in a non-material
way, Employee's base salary, as and when TeleTech deems appropriate.
B. ANNUAL BONUS. For each full calendar year hereunder, Employee shall
be entitled to an annual bonus targeted at 100 percent of her then current base
salary; provided, however, that the actual amount paid to Employee may be higher
or lower than the targeted amount at the Company's sole discretion. The precise
amount of the bonus shall be determined based on the achievement of a
combination of Company performance goals and Employee's personal performance
goals. Such goals and their respective weightings shall be reasonably
established by the Company in its sole discretion. Any and all bonuses hereunder
shall be payable in a lump sum, less legally required withholdings, the year
following the calendar year in which the bonus is earned.
For the Year 2000 bonus, Company shall pay employee 100 percent of her base
salary (less legally required withholdings), prorated from Employee's first day
of employment with Company.
3. STOCK OPTIONS.
a. Employee shall be eligible to participate in a management stock
option program ("MSOP") designed to grant stock options to specified executives
at the end of each year based on personal achievements and business objectives.
If awarded, options granted under the MSOP will vest in equal annual
installments over four years unless the Company elects a different vesting
schedule generally applicable to Company executives. Grants of options in
connection with the MSOP shall be made when and in an amount determined by
TeleTech in its sole discretion, and shall be subject to the terms and
conditions of a separate stock option agreement to be executed by Employee and
TeleTech, and to any terms or conditions of TeleTech's MSOP that may be
established, modified or amended from time to time.
b. On the Effective Date, the Company shall grant Employee a
non-qualified option to purchase 70,000 shares of the Company's common stock, at
an exercise price equal to the closing price, on the date of the grant, of
TeleTech common stock as reported by the NASDAQ national stock market. This
grant shall be made pursuant to and subject to the terms and conditions of
TeleTech's 1999 Non-Qualified Stock Option and Incentive Plan (the "Plan") and a
stock option agreement that shall provide, among other things, that this option
shall vest in equal annual installments over a four year period and Employee
shall have one year from the termination of her employment to exercise options
vested as of the termination date, provided that Employee's employment is not
terminated for "cause" as defined in the Plan, as amended.
c. In addition, on the Second Grant Date, as defined below, the
Company shall grant Employee a non-qualified option to purchase 50,000 shares of
the Company's common stock, at an exercise price equal to the closing price, on
the date of the grant, of TeleTech common stock as reported by the NASDAQ
national stock market. This grant shall be made pursuant to and subject to the
terms and conditions of the Plan, as amended (or pursuant to any successor to
the Plan) and a stock option agreement that shall provide, among other things,
that this option shall vest in equal annual installments over a four year period
and Employee shall have one year from the termination of her employment to
exercise options vested as of the termination date, provided that Employee's
employment is not terminated for "cause" as defined in the Plan, as amended (or
pursuant to any successor to the Plan). For purposes of this paragraph 3(c), the
"Second Grant Date" shall be no later than the third business day following the
first of the following events to occur: (i) the delivery to the Company of an
irrevocable written waiver by Employee of her rights under paragraph 7(g)(ii),
below; or (ii) the day after the one-year anniversary of the Effective Date, if
at that time Employee remains employed by the Company. If neither of the
conditions precedent specified in the preceding sentence occurs, then the
Company shall not be required to issue the stock option grant specified in this
paragraph 3(c).
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4. FRINGE BENEFITS.
A. EXECUTIVE MEDICAL AND DENTAL INSURANCE. Employee and her dependents
shall be eligible for coverage under the group medical and dental insurance
plans made available from time to time to TeleTech's executive and management
employees, beginning on the Effective Date. TeleTech shall pay premiums for
Employee and her dependents under such group medical and dental insurance plans
pursuant to the same premium-payment formula applicable to TeleTech's other
senior executives.
B. LIFE INSURANCE. Subject to Employee's satisfactory completion of a
standard medical examination, Employee shall be eligible for, and TeleTech shall
provide Employee with, a $4,000,000 term life insurance policy. TeleTech shall
pay all premiums relating to such a policy. TeleTech on behalf of Employee will
maintain such insurance policy so long as Employee is employed by TeleTech.
Employee shall be the owner of such policy and shall have the right to designate
the beneficiary or beneficiaries thereof. Upon termination of Employee's
employment for any reason, Employee shall have the right to continue and
maintain such policy by her payment of future premiums due under the policy.
C. DISABILITY INSURANCE. Employee shall be eligible to participate in
TeleTech's group disability insurance program, as that program may be modified
from time to time. Employee shall also be eligible for a Long-Term Disability
insurance policy that shall provide Employee 50 percent of Employee's then
current base salary and annual bonus (calculated at 80 percent) on the 91st day
of a qualifying disability.
D. MISCELLANEOUS BENEFITS. Employee shall receive fringe benefits
generally applicable to the other TeleTech executive and management employees
that are from time to time in effect.
5. PAID LEAVE.
A. VACATION. During each calendar year of Employee's continuous,
full-time active employment with TeleTech, Employee shall earn, incrementally
during each pay period, a total of twenty days of paid vacation time.
B. SICK LEAVE AND HOLIDAYS. Employee shall receive paid sick leave and
holidays under the guidelines for such leave applicable from time to time to
TeleTech's executive and management employees.
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6. RELATIONSHIP BETWEEN THIS AGREEMENT AND OTHER TELETECH PUBLICATIONS.
In the event of any conflict between any term of this Agreement and any
TeleTech contract, policy, procedure, guideline or other publication, the terms
of this Agreement shall control. For the avoidance of doubt, any disputes
brought under the Agreement to Protect Confidential Information, Assign
Inventions, and Prevent Unfair Competition and Unfair Solicitation
("Confidentiality Agreement"), of even date hereof and signed herewith, shall be
governed under paragraphs 9(b) and 9(d) of the Confidentiality Agreement.
7. TERM AND TERMINATION.
a. TERM. The term of this Agreement shall commence on the Effective
Date and continue until this Agreement is terminated as specified below.
b. TERMINATION BY CONSENT. This Agreement may be terminated at any
time by the parties' written agreement.
c. TERMINATION BY TELETECH WITHOUT CAUSE. If TeleTech terminates
Employee's employment without "cause" ("cause" as defined in Paragraph 7(d) of
this Agreement) during the term of this Agreement, after Employee executes a
separation agreement and legal release releasing all claims that legally can be
released in a form satisfactory to TeleTech, as severance compensation TeleTech
shall: (i) pay Employee the sum of eighteen months of Employee's then-current
base salary plus eighteen months of Employee's on-target annual bonus (100% of
base salary), both payable in eighteen equal monthly installments, less legally
required withholdings, on the first business day of each month, beginning in the
month following the termination date; and (ii) cause to vest all of Employee's
unvested stock options that would have vested under Employee's stock option
agreements during the 12 months following the effective date of the termination,
and (iii) all stock options vested as of the effective date of the termination
shall, notwithstanding any provision of the stock option agreement(s) or plan(s)
pursuant to which they were granted, remain exercisable for a period of no less
than 12 months following the effective date of the termination. If TeleTech
terminates this Agreement at any time without cause under this paragraph 7(c),
pays Employee all salary and compensation earned and unpaid as of the
termination date, and offers to provide Employee severance compensation and
accelerated option vesting in the amount and on the terms specified in this
paragraph 7(c), TeleTech's acts in doing so shall be in complete accord and
satisfaction of any claim that Employee has or may at any time have for
compensation or payments of any kind from TeleTech arising from or relating in
whole or part to Employee's employment with TeleTech and/or this Agreement.
Because this paragraph 7(c) is intended to provide compensation to enable
Employee to support herself in the event of Employee's loss of employment under
certain circumstances specified herein, Employee's right to severance pay under
this paragraph 7(c) shall not be triggered by the sale of all or a portion of
TeleTech's stock
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or assets, unless such sale results in Employee's loss of employment, or
Employee thereafter terminates this Agreement for "Good Cause," as that term is
defined in paragraph 7(g), below.
d. TERMINATION BY TELETECH FOR CAUSE. TeleTech may terminate this
Agreement effective immediately for cause, upon notice to Employee, with
TeleTech's only obligation being the payment of any salary and compensation
earned as of the date of termination, and any continuing obligations under
Company pension or benefit plans then in effect, and without liability for
severance compensation of any kind. For purposes of this Agreement, "cause"
exists if Employee breaches any material term of this Agreement, the
Confidentiality Agreement or any material TeleTech policy, procedure or
guideline, or if Employee engages in any of the following forms of misconduct:
conviction of, or a plea of nolo contendre to, any felony or misdemeanor
involving dishonesty or moral turpitude; theft or misuse of TeleTech's property
or time; use of alcohol or controlled substances on TeleTech's premises or
appearing on such premises while intoxicated or under the influence of drugs not
prescribed by a physician, or after having knowingly abused prescribed
medications (provided, however, that the use of alcohol or appearing intoxicated
on TeleTech's premises or at a TeleTech-sanctioned or sponsored event shall not
constitute "cause" for termination); illegal use of any controlled substance;
illegal gambling on TeleTech's premises; discriminatory or harassing behavior,
whether or not illegal under federal, state or local law; willful misconduct in
connection with Employee's activities under this Agreement; making any
statements, whether written or oral, that disparage or defame the Company;
intentionally falsifying any document or making any false or misleading
statement relating to Employee's employment by TeleTech.
e. TERMINATION UPON EMPLOYEE'S DEATH. This Agreement shall terminate
immediately upon Employee's death. Thereafter, TeleTech shall pay to Employee's
estate all compensation fully earned, and benefits fully vested as of the last
date of Employee's continuous, full-time active employment with TeleTech.
TeleTech shall not be required to pay any form of severance or other
compensation concerning or on account of Employee's employment with TeleTech or
the termination thereof.
f. TERMINATION FOLLOWING DISABILITY. During the first ninety calendar
days after a mental or physical condition that renders Employee unable to
perform the essential functions of her position with reasonable accommodation
(the "Initial Disability Period"), Employee shall continue to receive her base
salary pursuant to paragraph 2(a). Thereafter, if Employee qualifies for
benefits under TeleTech's long term disability insurance plan (the "LTD Plan"),
then she shall remain on leave for as long as she continues to qualify for such
benefits, up to a maximum of 180 consecutive days (the "Long Term Leave
Period"). The Long Term Leave Period shall begin on the first day following the
end of the Initial Disability Period. During the Long Term Leave Period,
Employee shall be entitled to any benefits to which the LTD Plan entitles her,
but no additional compensation from TeleTech in the form of salary, performance
bonus, new stock option grants, allowances or otherwise. If at the end of the
Long Term Leave Period Employee remains unable to perform the essential
functions of her position then
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TeleTech may terminate this Agreement and/or Employee's employment. In the event
that TeleTech terminates this Agreement or Employee's employment under this
subparagraph 7(f), TeleTech's payment obligation to Employee shall be limited to
all compensation fully earned, and benefits fully vested as of the last date of
Employee's continuous, full-time active employment with TeleTech. Except as
specifically set forth above in this subparagraph 7(f), TeleTech shall not be
required to pay any form of severance or other compensation concerning or on
account of Employee' employment with TeleTech or the termination thereof. The
compensation and benefits under this paragraph are in addition to any other
compensation and benefits Employee may receive under any disability or other
insurance policy.
g. TERMINATION BY EMPLOYEE FOR GOOD CAUSE.
i. Upon the occurrence of "Good Cause," as that term is defined
below, Employee may terminate this Agreement upon thirty days prior written
notice. As used in this paragraph 7(g), "Good Cause" shall mean (i) a material
decrease in Employee's base salary and/or a material decrease in Employee's
employee benefits (other than pursuant to a general reduction or modification of
such salary or benefits generally applicable to TeleTech's senior executives);
or (ii) a change in the responsibilities or duties assigned to Employee, as
measured against Employee's responsibilities or duties immediately prior to such
change, that causes Employee to be of materially reduced stature or
responsibility; or (iii) the occurrence of circumstances establishing
constructive discharge under the common law of the State of Colorado, including
Company's conduct that makes or allows Employee's working conditions to become
so intolerable that Employee has no reasonable choice but to resign. However, a
constructive discharge does not exist unless a reasonable person would concur
with Employee's opinion that the working conditions are intolerable. If Employee
terminates this Agreement for Good Cause and executes a separation agreement in
the form prescribed in paragraph 7(c), Company shall provide Employee the
severance compensation and benefits specified in paragraph 7(c), and TeleTech's
acts in doing so shall be in complete accord and satisfaction of any claim that
Employee has or may at any time have for compensation or payments of any kind
from TeleTech arising from or relating in whole or part to Employee's employment
with TeleTech and/or this Agreement.
ii. Transitional Period Rights.
(A) Before the first anniversary of the Effective Date (but
not thereafter), Employee shall have the right to terminate this Agreement for
Good Cause if the Company or any Company executive officer so materially impedes
her ability to perform the essential functions of her job that she is unable to
discharge the duties for which she is responsible; or materially violates any
provision of the Company's written business ethics policies and procedures or
any other material written Company policy; provided that Employee shall have the
right to terminate this Agreement for Good Cause under this paragraph 7(g)(ii)
only if the dispute resolution processes specified in the following subparagraph
have been completed, and if the
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Company, by the end of the Cure Period (as defined below) has not cured the
circumstances giving rise to Employee's right to terminate under this paragraph
7(g)(ii), as determined by the Neutral (as defined below) in his sole
discretion.
(B) If Employee believes in good faith that circumstances
constituting Good Cause under paragraph 7(g)(ii)(A), above, have arisen, then
she shall provide to the Company (c/o its General Counsel) and to Xxx Xxxxxxxx
(the "Neutral") written notice (the "Notice") of the facts and circumstances
that she believes give rise to such Good Cause, together with copies of any
records supporting or otherwise bearing upon her belief. Within 7 days after
receiving the Notice, the Neutral shall convene a meeting (the "Meeting")
between the Neutral, a Company representative and Employee, in an effort to
collect and discuss relevant information and mediate a solution to the
circumstances identified by Employee in the Notice. If the parties are unable,
during or as a consequence of the Meeting, to reach agreement upon a resolution
of the circumstances underlying the Notice that is reasonably satisfactory to
the Company and Employee, the Neutral shall, within 3 days after the Meeting,
provide the Company (c/o its General Counsel) and Employee a written
notification (the "Notification") stating whether in the Neutral's sole
discretion Good Cause as defined in paragraph 7(g)(ii)(A) exists, which
Notification shall for all purposes be final and binding upon the Company and
Employee as to the matters addressed therein. If the Neutral determines that the
circumstances described in the Notice, and the information provided by Employee
at the Meeting, do not establish the existence of Good Cause as defined in
paragraph 7(g)(ii)(A), then Employee shall execute a release in the form
attached hereto as Exh. A (in exchange for $500) and may thereafter, in her sole
discretion, remain employed by the Company under the terms and conditions set
forth in this Agreement, or she may resign, but if she resigns she shall be
entitled only to the benefits set forth in paragraph 7(h) of this Agreement, and
shall have no other or further severance or like entitlement of any kind. If the
Neutral determines that the circumstances described in the Notice, and the
information provided by Employee at the Meeting, do establish the existence of
Good Cause as defined in paragraph 7(g)(ii), then the Company shall have 30 days
following its receipt of the Notification (the "Cure Period") within which to
cure such circumstances. If the Company fails to do so, then Employee may
terminate this Agreement for Good Cause, and if Employee thus terminates this
Agreement and thereafter executes a separation agreement and legal release in
the form prescribed in paragraph 7(c), the Company shall provide Employee the
severance compensation and benefits specified in paragraph 7(c).
h. TERMINATION BY EMPLOYEE. This Agreement may be terminated by
Employee upon three weeks written notice to TeleTech. If Employee terminates
this Agreement under this paragraph she shall be entitled to all earned but
unpaid compensation for services rendered (but not severance compensation), and
payment for any earned but unused vacation time. Employee shall be entitled to
no other benefits or compensation other than those provided under any written
Company stock option agreement or benefit plan.
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i. POST-TERMINATION STATEMENTS. In the event Employee or TeleTech
terminates Employee's employment under this Agreement:
x. TeleTech agrees that no TeleTech Executive Officer and no
member of the TeleTech Board of Directors (the "Board") shall defame or
disparage Employee, and that such Executive Officers and Directors shall confine
any public comment concerning Employee, except as may be required by law, to a
statement that Employee "has chosen to resign from TeleTech." Upon receiving
reference requests directed to the Company's human resources department,
TeleTech shall provide to any future potential employers or other third parties
no information other than Employee's most recent position and title and level of
compensation, unless otherwise requested by Employee or required by law. The
parties agree that damages for breach of this paragraph are difficult to
ascertain with certainty and, therefore, agree that the best and actual damages
for violation of this paragraph by TeleTech will be $200,000.
y. Employee shall not defame or disparage TeleTech, TeleTech's
products, services or operations, any TeleTech Executive Officer, or any member
of the Board, and shall confine any public comment concerning her separation
from TeleTech, except as may be required by law, to a statement that Employee
"has chosen to resign from TeleTech." The parties agree that damages for breach
of this paragraph are difficult to ascertain with certainty and, therefore,
agree that the best and actual damages for violation of this paragraph by
Employee will be $200,000.
8. SUCCESSORS AND ASSIGNS.
TeleTech, its successors and assigns may in their sole discretion assign
this Agreement to any person or entity, with or without Employee's consent. This
Agreement thereafter fully shall bind, and inure to the benefit of, TeleTech's
successors or assigns and in the event of a sale of all or a portion of
TeleTech's stock or assets, this Agreement shall continue in full force and
effect. Employee shall not assign either this Agreement or any right or
obligation arising hereunder.
9. DISPUTE RESOLUTION.
a. Employee and TeleTech agree that in the event of any controversy or
claim arising out of or relating to Employee's employment with and/or separation
from TeleTech, they shall negotiate in good faith to resolve the controversy or
claim privately, amicably and confidentially. Each party may consult with
counsel in connection with such negotiations.
b. Excepting only: (1) worker's compensation claims; (2) unemployment
compensation claims; (3) proceedings to enforce the terms of any confidentiality
covenant or to protect Confidential Information and/or Confidential Records; (4)
claims brought under the Colorado Wage Act, C.R.S. xx.xx. 8-4-101, ET SEQ.; and
(5) disputes subject to paragraph 7(g)(ii)(B), above (which shall be fully and
finally resolved as specified in that paragraph), all controversies and claims
arising from or
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relating to Employee's employment with TeleTech and/or the termination of
that employment that cannot be resolved by good-faith negotiations
("Arbitrable Disputes") shall be resolved only by final and binding
arbitration conducted privately and confidentially in the Denver, Colorado,
metropolitan area by a single arbitrator who is a member of the panel of
former judges that makes up the Judicial Arbiter Group ("JAG"); any successor
of JAG; or, if JAG or any successor is not in existence, any entity that can
provide a former judge to serve as arbitrator (collectively, the "Dispute
Resolution Service"). Without limiting the generality of the foregoing, the
parties understand and agree that this paragraph 9 shall require arbitration
of all disputes and claims that may arise at common law, such as breach of
contract, express or implied, promissory estoppel, wrongful discharge,
tortious interference with contractual rights, infliction of emotional
distress, defamation, or under federal, state or local laws, such as the Fair
Labor Standards Act, the Employee Retirement Income Security Act, the
National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the
Equal Pay Act, the Americans with Disabilities Act, and the Colorado Civil
Rights Act. The parties understand and agree that this Agreement evidences a
transaction involving commerce within the meaning of 9 U.S.C. Section 2, and
that this Agreement shall therefore be governed by the Federal Arbitration
Act, 9 U.S.C. Sections 1, ET SEQ.
c. Notwithstanding any statute or rule governing limitations of
actions, any arbitration relating to or arising from any Arbitrable Dispute
shall be commenced by service of an arbitration demand before the earlier of the
one-year anniversary of the accrual of the aggrieved party's claim pursuant to
Colorado law or the one-year anniversary of Employee's last day of employment
with TeleTech. Otherwise, all claims that were or could have been brought by the
aggrieved party against the other party shall be forever barred.
d. To commence an arbitration pursuant to this Agreement, a party
shall serve a written arbitration demand (the "Demand") on the other party by
certified mail, return receipt requested, and at the same time submit a copy of
the Demand to the Dispute Resolution Service, together with a check payable to
the Dispute Resolution Service in the amount of that entity's then-current
arbitration filing fee; provided that in no event shall Employee be required to
pay an arbitration filing fee exceeding the sum then required to file a civil
action in the United States District Court for the District of Colorado. The
claimant shall attach a copy of this Agreement to the Demand, which shall also
describe the dispute in sufficient detail to advise the respondent of the nature
of the dispute, state the date on which the dispute first arose, list the names
and addresses of every current or former employee of TeleTech or any affiliate
whom the claimant believes does or may have information relating to the dispute,
and state with particularity the relief requested by the claimant, including a
specific monetary amount, if the claimant seeks a monetary award of any kind.
Within thirty days after receiving the Demand, the respondent shall mail to the
claimant a written response to the Demand (the "Response"), and submit a copy of
the Response to the Dispute Resolution Service, together with a check for the
difference (if the respondent is
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TeleTech), if any, between the filing fee paid by the claimant and the Dispute
Resolution Service's then-current arbitration filing fee.
e. Promptly after service of the Response, the parties shall confer in
good faith to attempt to agree upon a suitable arbitrator. If the parties are
unable to agree upon an arbitrator, the Dispute Resolution Service shall select
the arbitrator, based, if possible, on his or her expertise with respect to the
subject matter of the Arbitrable Dispute.
f. Notwithstanding the choice-of-law principles of any jurisdiction,
the arbitrator shall be bound by and shall resolve all Arbitrable Disputes in
accordance with the substantive law of the State of Colorado, federal law as
enunciated by the federal courts situated in the Tenth Circuit, and all Colorado
and Federal rules relating to the admissibility of evidence, including, without
limitation, all relevant privileges and the attorney work product doctrine.
Without limiting the generality of the foregoing, in the event of one party's
violation of any provision of this agreement, the non-breaching party shall have
the right to seek specific performance of that provision against the breaching
party.
g. Before the arbitration hearing, TeleTech and Employee shall each be
entitled to take a discovery deposition of up to three persons with knowledge of
the dispute. Upon the written request of either party, the other party shall
promptly produce documents relevant to the Arbitrable Dispute or reasonably
likely to lead to the discovery of admissible evidence. The manner, timing and
extent of any further discovery shall be committed to the arbitrator's sound
discretion, provided that under no circumstances shall the arbitrator allow more
depositions or interrogatories than permitted by the presumptive limitations set
forth in F.R.Civ.P. 30(a)(2)(A) and 33(a). The arbitrator shall levy appropriate
sanctions, including an award of reasonable attorneys' fees, against any party
that fails to cooperate in good faith in discovery permitted by this paragraph 9
or ordered by the arbitrator.
h. Before the arbitration hearing, any party may by motion seek
judgment on the pleadings as contemplated by F.R.Civ.P. 12 and/or summary
judgment as contemplated by F.R.Civ.P. 56. The other party may file a written
response to any such motion, and the moving party may file a written reply to
the response. The arbitrator: may in his or her discretion conduct a hearing on
any such motion; shall give any such motion due and serious consideration,
resolving the motion in accordance with F.R.Civ.P. 12 and/or a F.R.Civ.P. 56, as
the case may be, and other governing law, pursuant to paragraph 9(f), and shall
issue a written award concerning any such motion no fewer than ten days before
any evidentiary hearing conducted on the merits of any claim asserted in the
arbitration.
i. Within thirty days after the arbitration hearing is closed, the
arbitrator shall issue a written award setting forth his or her decision and the
reasons therefor. If a party prevails on a statutory claim that affords the
prevailing party the right to recover attorneys' fees and/or costs, then the
arbitrator shall award to the party that
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substantially prevails in the arbitration its costs and expenses, including
reasonable attorneys' fees. The arbitrator's award shall be final,
nonappealable and binding upon the parties, subject only to the provisions of
9 U.S.C. Section 10, and may be entered as a judgment in any court of
competent jurisdiction.
j. The parties agree that reliance upon courts of law and equity can
add significant costs and delays to the process of resolving disputes.
Accordingly, they recognize that an essence of this Agreement is to provide for
the submission of all Arbitrable Disputes to binding arbitration. Therefore, if
any court concludes that any provision of this paragraph 9 is void or voidable,
the parties understand and agree that the court shall reform each such provision
to render it enforceable, but only to the extent absolutely necessary to render
the provision enforceable and only in view of the parties' express desire that
Arbitrable Disputes be resolved by arbitration and, to the greatest extent
permitted by law, in accordance with the principles, limitations and procedures
set forth in this Agreement.
k. This paragraph 9 supersedes any prior agreement(s) between the
parties, whether oral or written, concerning or relating to arbitration or
resolution of any dispute(s) between the parties, except that paragraphs 9(b)
and 9(d) of the Confidentiality Agreement shall govern any disputes brought
under the Confidentiality Agreement.
10. MISCELLANEOUS.
a. GOVERNING LAW. This Agreement, and all other disputes or issues
arising from or relating in any way to TeleTech's relationship with Employee,
shall be governed by the internal laws of the State of Colorado, irrespective of
the choice of law rules of any jurisdiction.
b. SEVERABILITY. If any court of competent jurisdiction declares any
provision of this Agreement invalid or unenforceable, the remainder of the
Agreement shall remain fully enforceable. To the extent that any court concludes
that any provision of this Agreement is void or voidable, the court shall reform
such provision(s) to render the provision(s) enforceable, but only to the extent
absolutely necessary to render the provision(s) enforceable.
c. INTEGRATION. This Agreement constitutes the entire agreement of the
parties and a complete merger of prior negotiations and agreements and, except
as provided in paragraph 9(j), shall not be modified by word or deed, except in
a writing signed by Employee and an authorized officer of the Company.
d. WAIVER. Except for a limitation of Employee's rights under
paragraph 7(g)(ii), no provision of this Agreement shall be deemed waived, nor
shall there be an estoppel against the enforcement of any such provision, except
by a writing signed by the party charged with the waiver or estoppel. No waiver
shall be deemed continuing unless specifically stated therein, and the written
waiver shall operate only as
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to the specific term or condition waived, and not for the future or as to any
act other than that specifically waived.
e. CONSTRUCTION. Headings in this Agreement are for convenience only
and shall not control the meaning of this Agreement. Whenever applicable,
masculine and neutral pronouns shall equally apply to the feminine genders; the
singular shall include the plural and the plural shall include the singular. The
parties have reviewed and understand this Agreement, and each has had a full
opportunity to negotiate the agreement's terms and to consult with counsel of
their own choosing. Therefore, the parties expressly waive all applicable common
law and statutory rules of construction that any provision of this Agreement
should be construed against the agreement's drafter, and agree that this
Agreement and all amendments thereto shall be construed as a whole, according to
the fair meaning of the language used.
f. COUNTERPARTS AND TELECOPIES. This Agreement may be executed in
counterparts, or by copies transmitted by telecopier, which counterparts and/or
facsimile transmissions shall have the same force and effect as had the contract
been executed in person and in original form.
EMPLOYEE ACKNOWLEDGES AND AGREES: THAT SHE UNDERSTANDS THIS AGREEMENT; THAT SHE
ENTERS INTO IT FREELY, KNOWINGLY, AND MINDFUL OF THE FACT THAT IT CREATES
IMPORTANT LEGAL OBLIGATIONS AND AFFECTS HER LEGAL RIGHTS; AND THAT SHE
UNDERSTANDS THE NEED TO CONSULT CONCERNING THIS AGREEMENT WITH LEGAL COUNSEL OF
HER OWN CHOOSING, AND HAS HAD A FULL AND FAIR OPPORTUNITY TO DO SO.
[SIGNATURES FOLLOW]
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Xxxxxx O'Dell TeleTech Holdings, Inc.
/s/ Xxxxxx O'Dell By: /s/ Xxxxx X. Xxxxxxx
------------------------------- -------------------------------
Date: 2/8/01 As its: Executive Vice President
------------------------------- ----------------------------
Date: 2/8/01
----------------------------
13
