EMPLOYMENT AGREEMENT
This Agreement is between TeleTech Holdings, Inc. (the "Company" or
"TeleTech") and Xxxxxxx Xxxx ("Xxxx"), and shall be effective as of December
6, 1999.
1. APPOINTMENT.
a. TeleTech hereby employs Xxxx as Chief Financial Officer
and President of TeleTech's Companies Group, and Xxxx hereby accepts such
employment with TeleTech. Xxxx' first day of regular, full-time active
employment with TeleTech (the "Start Date") shall be on or before December 6,
1999, unless Xxxx and TeleTech agree, in advance, that Xxxx may begin work on
a different date.
b. Reporting to the Chief Executive Officer, the Chief
Financial Officer shall be responsible for managing all of the financial
affairs of the Company and shall otherwise have all the duties and
responsibilities of the highest level financial officer of a publicly held
company, and those duties and responsibilities that may be assigned by the
Chief Executive Officer. Also reporting to the Chief Executive Officer, the
President of TeleTech's Companies Group shall be responsible for managing all
of TeleTech's technology related initiatives and programs.
x. Xxxx shall devote his full-time and best efforts to the
performance of all duties as shall be assigned to him from time to time by
TeleTech or the Chief Executive Officer. Unless otherwise specifically
authorized in writing by TeleTech, Xxxx shall not engage in any other
business activity, or otherwise be gainfully employed.
x. Xxxx acknowledges that, as part of his employment duties
hereunder, Xxxx 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 Xxxx agrees to perform such
duties.
x. Xxxx warrants and represents that neither his execution
of this Agreement or any other agreement in connection herewith nor his
performance of his duties hereunder shall breach his contractual or other
obligations or duties to any prior employer, including without limitation,
Xxxxxxx Kodak.
2. COMPENSATION.
a. SALARY AND SALARY REVIEW. Xxxx' starting base salary
shall be $250,000 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 Xxxx' base salary, as and when
TeleTech deems appropriate.
b. ANNUAL BONUS. For each full calendar year hereunder,
Xxxx shall be entitled to an annual bonus targeted at one hundred percent of
his then current base salary; provided, however, that the actual amount paid
to Xxxx 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 Xxxx' Management Bonus Opportunity ("MBO") performance goals,
which goals shall be determined in advance jointly by Xxxx and the Chief
Executive Officer. For 1999, Xxxx' shall be entitled to a bonus of $75,000.
Should Xxxx, on starting employment with TeleTech, forfeit any additional
portion of his 1999 bonus with his previous employer, TeleTech will pay the
difference up to an additional $37,000. Upon Xxxx' continued employment by
TeleTech at the time annual bonuses are paid by TeleTech for calendar year
2000, Xxxx shall receive a bonus of not less than seventy percent of his base
salary. Any and all bonuses hereunder shall be payable in a lump sum, less
legally required withholdings, the year following the calendar year with
respect to which the bonus is earned.
3. STOCK OPTIONS.
x. Xxxx shall receive a one-time sign-on option award of
250,000 non-qualified stock options with an exercise price of $12.75. This
grant shall be reflected in a stock option agreement providing, among other
things, that upon Xxxx' continued employment by TeleTech, these options shall
vest in equal installments on the first five anniversaries of the Start Date,
and that the vesting of such options shall be partially accelerated upon a
change of control, as described in detail in the stock option agreement.
Should Xxxx cease to be employed by TeleTech or any of its subsidiaries or
affiliates for any reason other than (i) for "cause" (as defined in
TeleTech's 1999 Stock Option and Incentive Plan), (ii) Xxxx' death, or (iii)
disability because of which Xxxx is unable to perform the essential functions
of his position(s), the Options shall be exercisable at any time prior to
three months after the date Xxxx' employment terminates.
x. Xxxx 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
Xxxx and TeleTech, and to any terms or conditions of TeleTech's MSOP that may
be established, modified or amended from time to time.
4. FRINGE BENEFITS.
a. EXECUTIVE MEDICAL AND DENTAL INSURANCE. Xxxx and his
dependents shall be eligible for coverage under the group medical and dental
insurance
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plans made available from time to time to TeleTech's executive and management
employees, beginning on the Start Date. TeleTech shall pay premiums for Xxxx
and his 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 Xxxx' satisfactory
completion of a standard medical examination, Xxxx shall be eligible for, and
TeleTech shall provide Xxxx with, a $4,000,000 term life insurance policy.
TeleTech shall pay all premiums relating to such a policy. TeleTech on behalf
of Xxxx will maintain such insurance policy so long as Xxxx is employed by
TeleTech. Xxxx shall be the owner of such policy and shall have the right to
designate the beneficiary or beneficiaries thereof. Upon termination of
Xxxx' employment for any reason whatsoever, Xxxx shall have the right to
continue and maintain such policy by his payment of future premiums due under
the policy.
c. DISABILITY INSURANCE. Xxxx shall be eligible to
participate in TeleTech's group disability insurance program, as that program
may be modified from time to time, under which, in the event of a qualifying
disability and subject to the other terms and conditions of that program,
Xxxx shall be eligible to receive no less than 50% of his base salary and
annual bonus under paragraph 2(b), above, (calculated at 80% of his then-base
salary) beginning on the ninety-first day of a qualifying disability.
d. MISCELLANEOUS BENEFITS. Xxxx shall receive all fringe
benefits that other TeleTech executive and management employees may from time
to time receive.
5. PAID LEAVE.
a. VACATION. During each calendar year of Xxxx'
continuous, full-time active employment with TeleTech, Xxxx shall earn,
incrementally during each pay period, a total of twenty days of paid vacation
time.
b. SICK LEAVE AND HOLIDAYS. Xxxx 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.
6. RELOCATION EXPENSES. TeleTech shall reimburse Xxxx for his
reasonable expenses in relocating to the Denver, Colorado metropolitan area
up to $70,000, including, without limitation, expenses, such as the payment
of any agent's or broker's fee and other closing costs, incurred by Xxxx in
connection with the sale of his home, travel expenses for Xxxx and his family
between his present residence and Denver, Colorado, and closing costs
associated with Xxxx' purchase of a new home in the Denver, Colorado
metropolitan area. All such reimbursements shall, if necessary, be grossed
up to make Xxxx whole on an after-tax basis for his actual out-of-pocket
expenses, up to the $70,000 limit.
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7. 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.
8. TERM AND TERMINATION.
a. TERM. The term of this Agreement shall be two years,
commencing on the Start Date and ending on the second anniversary thereof.
This Agreement shall be renewed for successive one-year terms if the parties
agree to renew in writing at least ninety days before the expiration of the
initial two-year term or any renewal term, as the case may be.
b. TERMINATION BY CONSENT. This Agreement may be
terminated at any time by the parties' mutual agreement, expressed in
writing.
c. TERMINATION BY TELETECH WITHOUT CAUSE. If TeleTech
terminates Xxxx' employment without "cause" (as defined in TeleTech's 1999
Stock Option and Incentive Plan) during the term of this Agreement, or if
Xxxx' position or salary materially changes, after Xxxx executes a separation
agreement and legal release in a form satisfactory to TeleTech, TeleTech
shall pay Xxxx (i) severance compensation equal to the sum of eighteen months
of Xxxx' then-current base salary under paragraph 2(a), above, which shall be
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; (ii) all of Xxxx' unvested stock options that
would have vested at the next succeeding vesting date under Xxxx' option
agreements in effect at the date of termination and (iii) a bonus equal to
70% of Xxxx' then current annual base salary, prorated based on his
termination date, less legally required withholdings. If TeleTech terminates
this Agreement at any time without cause under this paragraph 8(c), pays Xxxx
all salary and compensation earned and unpaid as of the termination date, and
offers to provide Xxxx severance compensation and accelerated option vesting
in the amount and on the terms specified above, TeleTech's acts in doing so
shall be in complete accord and satisfaction of any claim that Xxxx 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 Xxxx' employment with TeleTech
and/or this Agreement. Because this paragraph 8(c) is intended to provide
compensation to enable Xxxx to support himself in the event of Xxxx' loss of
employment under certain circumstances specified herein, Xxxx' right to
severance pay under this paragraph 8(c) shall not be triggered by the sale of
all or a portion of TeleTech's stock or assets, unless such sale results in
Xxxx' loss of employment, or Xxxx thereafter terminates this Agreement for
"Good Cause," as that term is defined in paragraph 8(g), below.
d. TERMINATION BY TELETECH FOR CAUSE. TeleTech may
terminate this Agreement effective immediately for cause (as defined in
TeleTech's 1999 Stock Option and Incentive Plan), upon notice to Xxxx, with
TeleTech's only obligation being the
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payment of salary and compensation earned as of the date of termination, and
without liability for severance compensation of any kind.
e. TERMINATION UPON XXXX' DEATH. This Agreement shall
terminate immediately upon Xxxx' death. Thereafter, TeleTech shall pay to
Xxxx' estate (i) all compensation fully earned, and benefits fully vested as
of the last date of Xxxx' continuous, full-time active employment with
TeleTech; (ii) all of Xxxx' unvested stock options that would have vested at
the next succeeding vesting date under Xxxx' option agreements then in effect
and (iii) a bonus equal to 70% of Xxxx' then current annual base salary,
prorated based on his date of death, less legally required withholdings.
Except as specifically set forth above in this subsection (e), TeleTech shall
not be required to pay any form of severance or other compensation concerning
or on account of Xxxx' employment with TeleTech or the termination thereof.
f. TERMINATION BECAUSE OF DISABILITY. During the first
ninety calendar days of any period during which a medical condition renders
Xxxx continuously unable to perform the essential functions of his position
(the "Initial Disability Period"), he shall continue to receive his base
salary pursuant to paragraph 2(a), above. Thereafter, if Xxxx qualifies for
benefits under TeleTech's long term disability insurance plan (the "LTD
Plan"), then he shall remain on leave for so long as he continues to qualify
for such benefits, during which time he shall be entitled to any benefits to
which the LTD Plan entitles him, but no additional compensation from
TeleTech. If at any time after the Initial Disability Period Xxxx remains
unable to perform the essential functions of his position but is denied or
otherwise becomes ineligible for benefits under the LTD Plan, and then
TeleTech may terminate this Agreement and/or Xxxx' employment.
g. TERMINATION BY XXXX. Upon the occurrence of "Good
Cause," as that term is defined below, Xxxx may terminate this Agreement upon
ninety days' prior written notice. As used in this paragraph 8(h), "Good
Cause" shall mean (i) a substantial and material diminution of Xxxx'
responsibilities and duties concerning the operation of TeleTech's business;
(ii) a material decrease in Xxxx' base salary and/or a material decrease in
Xxxx' employee benefits (other than pursuant to a general reduction or
modification of such benefits that is applicable to all of TeleTech's senior
executives); or (iii) a material change in the responsibilities or duties
assigned to Xxxx, as measured against Xxxx' responsibilities or duties
immediately prior to such change, that causes Xxxx to be of materially
reduced stature or responsibility; or (iv) a material change in Xxxx'
reporting responsibilities or duties, as measured against Xxxx' reporting
responsibilities or duties immediately prior to such change, that materially
curtails Xxxx' ability to perform the services required of Xxxx' position; or
(v) the occurrence of circumstances establishing constructive discharge under
the common law of the State of Colorado. If Xxxx terminates this agreement
for Good Cause and executes a separation agreement in the form prescribed in
paragraph 8(c), above, he shall be entitled to the severance compensation
specified in paragraph 8(c), above.
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9. SUCCESSORS AND ASSIGNS. TeleTech, its successors and assigns
may in their sole discretion assign this Agreement to any person or entity,
with or without Xxxx' consent. This Agreement thereafter shall bind, and
inure to the benefit of, TeleTech's successor or assign. Xxxx shall not
assign either this Agreement or any right or obligation arising hereunder.
10. DISPUTE RESOLUTION.
x. Xxxx and TeleTech agree that in the event of any
controversy or claim arising out of or relating to Xxxx' 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; and (4) claims brought under the Colorado Wage Act,
C.R.S. Sections 8-4-101, ET SEQ., all controversies and claims arising from
or relating to Xxxx' 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 10 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 Xxxx' last day of employment with TeleTech. Otherwise, all claims that
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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
the Xxxx 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
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.
g. Before the arbitration hearing, TeleTech and Xxxx 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
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attorneys' fees, against any party that fails to cooperate in good faith in
discovery permitted by this paragraph 10 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 10(f), above; 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 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 10 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.
11. MISCELLANEOUS.
a. GOVERNING LAW. This Agreement, and all other disputes
or issues arising from or relating in any way to TeleTech's relationship with
Xxxx, 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)
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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 the preceding subparagraph 10(j), shall
not be modified by word or deed, except in a writing signed by Xxxx and the
Chief Executive Officer.
d. WAIVER. 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 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.
XXXX ACKNOWLEDGES AND AGREES: THAT HE UNDERSTANDS THIS AGREEMENT; THAT HE
ENTERS INTO IT FREELY, KNOWINGLY, AND MINDFUL OF THE FACT THAT IT CREATES
IMPORTANT LEGAL OBLIGATIONS AND AFFECTS HIS LEGAL RIGHTS; AND THAT HE
UNDERSTANDS THE NEED TO CONSULT CONCERNING THIS AGREEMENT WITH LEGAL COUNSEL
OF HIS OWN CHOOSING, AND HAS HAD A FULL AND FAIR OPPORTUNITY TO DO SO.
[SIGNATURES FOLLOW]
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TeleTech Holdings, Inc.
/s/ Xxxxxxx Xxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------------- --------------------------------
Xxxxxxx Xxxx Print name: Xxxxx Xxxxxxxx
------------------------
Date: 12/6/99
---------------------------- As its: CEO and President
----------------------------
Date: 12/6/99
------------------------------
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