EMPLOYMENT AGREEMENT
This Agreement is between TeleTech Holdings, Inc. ("TeleTech") and Xxxxx
Xxxxxxxx ("Xxxxxxxx"), and shall be effective as of October 2, 1999.
1. APPOINTMENT.
a. TeleTech hereby employs Xxxxxxxx as Chief Executive Officer,
and Xxxxxxxx hereby accepts such employment with TeleTech. Xxxxxxxx'x first
day of regular, full-time active employment with TeleTech (the "Start Date")
shall be on or before October 18, 1999, unless Xxxxxxxx and TeleTech agree,
in advance, that Xxxxxxxx may begin work on a different date. TeleTech shall
appoint Xxxxxxxx to the Board of Directors of TeleTech (the "Board") for a
term ending in May 2000 at the next annual meeting to TeleTech shareholders.
Thereafter, upon the expiration of any Board term to which Xxxxxxxx is
appointed or elected, and so long xx Xxxxxxxx serves as TeleTech's Chief
Executive Officer, TeleTech shall nominate him for re-election to the Board.
b. Reporting to the Board, the Chief Executive Officer shall be
responsible for providing vision and setting TeleTech's strategic direction,
as well as ensuring its successful execution. Those efforts should result in
TeleTech assuming and maintaining market leadership and sustained growth in
shareholder value. The Chief Executive Officer will manage external and
internal relationships to solidify and enhance credibility and visibility
with customers, employees, the financial community, governments, and the
media. The Chief Executive Officer shall have all functional and operational
responsibility for TeleTech and its affiliates. All employees and departments
of TeleTech and its affiliates shall report directly or indirectly to the
Chief Executive Officer. TeleTech represents, warrants, covenants and agrees
that the office of Chief Executive Officer is and shall remain, so long as
this Agreement is in effect, the most senior and highest-ranking officer of
TeleTech. As such Xxxxxxxx shall only be required to report to the Board
x. Xxxxxxxx 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 and shall use his best efforts to promote the business and prospects
of TeleTech. Unless otherwise specifically authorized in writing by TeleTech,
Xxxxxxxx shall not engage in any other business activity, or be gainfully
employed, if such other activity or employment materially affects or limits
Xxxxxxxx'x performance of his obligations to TeleTech. Further, except as
otherwise provided in any TeleTech securities-related policy that is
applicable generally to TeleTech's senior executives and/or any other
agreement between Xxxxxxxx and Teletech, Xxxxxxxx shall not be prohibited
from making investments in other businesses or enterprises provided such
investments do not require the provision of substantial services by Xxxxxxxx
to the operations or the affairs of such businesses or enterprises such that
the provisions thereof would interfere in any material respect with the
performance of Xxxxxxxx'x duties hereunder.
x. Xxxxxxxx acknowledges that, as part of his employment duties
hereunder, Xxxxxxxx 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 Xxxxxxxx agrees to perform such
duties.
x. Xxxxxxxx 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
Lucent Technologies.
2. COMPENSATION.
a. SALARY AND SALARY REVIEW. Xxxxxxxx'x starting base salary
shall be $425,000 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 (but not decrease) Xxxxxxxx'x
base salary, as and when TeleTech deems appropriate.
b. SIGN-ON BONUS. Xxxxxxxx shall receive, as a one-time sign-on
bonus, one or the other, but not both, of the benefits described in
paragraphs 2(b)(i) and 2(b)(ii), below. Xxxxxxxx shall make his election in
writing before the Start Date. If he fails to do so, TeleTech may make the
election, in its sole discretion.
x. Xxxxxxxx may elect to receive 100,000 shares of TeleTech
common stock (the "Stock"), restricted so as to prevent Xxxxxxxx from
selling, transferring, encumbering or otherwise disposing of or alienating
the Stock or any interest therein. Upon Xxxxxxxx'x continued employment by
TeleTech as of the last day of each of the eleven calendar months following
the Start Date, the restrictions on 8,333 shares of the Stock shall be
removed, and on the first anniversary of the Start Date the restrictions on
the remaining 8,337 shares of the Stock shall be removed. If Xxxxxxxx is
discharged without cause pursuant to paragraph 8(c), below, before the first
anniversary of the Start Date, all remaining restrictions on the Stock shall
be removed as of the discharge date. If, before the first anniversary of the
Start Date, Xxxxxxxx resigns or is discharged for cause pursuant to paragraph
8(d), below, he shall be required to return to TeleTech only that portion of
the Stock from which the restrictions had not, as of the termination date,
been removed, as provided above. Xxxxxxxx understands and agrees that the
removal of the restrictions on the Stock, or any part thereof, at any time
may result in taxable income to Xxxxxxxx, and that such removal may give rise
to a tax withholding obligation on the part of TeleTech, and Xxxxxxxx agrees
to satisfy any such tax withholdings, to the extent, and only to the extent,
that such tax withholdings relate to the employee's share, but not the
employer's matching share, if any, of any such tax withholdings.
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ii. Xxxxxxxx may elect to receive a loan (the "Loan"), the
proceeds of which shall be distributed when Xxxxxxxx executes a promissory
note evidencing the loan. Interest shall accrue on all unpaid principal at
the rate of 6% per annum. The principal amount of the loan shall be $900,000
if the Start Date is on or before October 18, 1999, and $500,000 if the Start
Date is after October 18, 1999, and before December 1, 1999. No loan shall be
made if the Start Date is on or after December 1, 1999. Upon Xxxxxxxx'x
continued employment by TeleTech as of the last day of each of the eleven
calendar months following the Start Date, TeleTech shall forgive one-twelfth
of the principal amount of the loan, and all interest accrued on the
principal amount then forgiven, and upon the first anniversary of the Start
Date all remaining unpaid principal, and all remaining accrued interest,
shall be forgiven. If Xxxxxxxx is discharged without cause pursuant to
paragraph 8(c), below, before the first anniversary of the Start Date, all
remaining unpaid principal, and all remaining accrued interest, shall be
forgiven. If, before the first anniversary of the Start Date, Xxxxxxxx
resigns or is discharged for cause pursuant to paragraph 8(d), below, he
shall be required to repay only that portion of the Loan that had not, as of
the termination date, been forgiven, as provided above. Xxxxxxxx understands
and agrees that TeleTech's forgiveness of the loan or any part thereof at any
time may result in taxable income to Xxxxxxxx, and that such forgiveness may
give rise to a tax withholding obligation on the part of TeleTech, and
Xxxxxxxx agrees to satisfy any such tax withholdings, to the extent, and only
to the extent, that such tax withholdings relate to the employee's share, but
not the employer's matching share, if any, of any such tax withholdings.
c. ANNUAL BONUS.
i. Upon Xxxxxxxx'x continued employment by TeleTech as of
December 31, 2000, Xxxxxxxx shall be entitled to an annual bonus in an amount
determined by TeleTech but no less than $340,000, payable in a lump sum, less
legally required withholdings, no later than March 31, 2001.
ii. In connection with Xxxxxxxx'x work during calendar 2001
and each full calendar year thereafter, Xxxxxxxx shall be eligible for an
annual bonus targeted at between eighty percent and one hundred fifty percent
(or more) of his then-current base salary. The precise amount of that bonus
shall be determined based on the achievement of Xxxxxxxx'x Management Bonus
Opportunity ("MBO") performance goals, which goals shall be determined in
good faith and in advance jointly by Xxxxxxxx and the Board. Any such bonus
shall be payable in a lump sum, less legally required withholdings, no later
than March 31 of the year following the calendar year with respect to which
the bonus is earned.
3. STOCK OPTIONS.
x. Xxxxxxxx shall receive a one-time sign-on option award of
1,000,000 non-qualified stock options with an exercise price equal the fair
market value
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of TeleTech common stock on the Start Date, calculated as the last sale price
for TeleTech common stock reported by the Nasdaq Stock Market, Inc., as of
the close of business on the Start Date. This grant shall be reflected in a
stock option agreement providing, among other things, that upon Xxxxxxxx'x
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 accelerated upon a change of control, or the
attainment of stock price targets, as described in detail in the stock option
agreement.
x. Xxxxxxxx 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. As CEO, Xxxxxxxx shall be eligible for an
award of up to 75,000 options per year, which would, if awarded, vest in
equal annual installments over four years. The Board may from time to time
increase the maximum recommended grant. 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 Xxxxxxxx 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. Xxxxxxxx and his
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 Start Date. TeleTech shall pay
premiums for Xxxxxxxx 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 Xxxxxxxx'x satisfactory completion
of a standard medical examination, Xxxxxxxx shall be eligible for, and
TeleTech shall provide Xxxxxxxx with, a $5,000,000 term life insurance
policy. TeleTech shall pay all premiums relating to such a policy. Such
insurance policy will be maintained by TeleTech on behalf of Xxxxxxxx so long
xx Xxxxxxxx is employed by TeleTech. Xxxxxxxx shall be the owner of such
policy and shall have the right to designate the beneficiary or beneficiaries
thereof. Upon termination of Xxxxxxxx'x employment for any reason whatsoever,
Xxxxxxxx shall have the right to continue and maintain such policy by his
payment of future premiums due under the policy.
c. DISABILITY INSURANCE. Xxxxxxxx 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,
Xxxxxxxx shall be eligible to receive no less than 50% of his base salary and
annual bonus under paragraph 2(c), above,
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(calculated at 80% of his then-base salary) beginning on the ninety-first day
of a qualifying disability.
d. EXPENSES. TeleTech shall reimburse Xxxxxxxx for all reasonable
and necessary expenses incurred by Xxxxxxxx in connection with his
performance of his duties under this Agreement.
e. OFFICE. Xxxxxxxx shall initially be assigned the chief
executive's office located on the 14th Floor of 0000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx 00000, or such other office space as TeleTech shall from time to
time designate for use by its chief executive, provided that such office
space shall at all times befit an executive of Xxxxxxxx'x stature and
responsibilities.
f. FINANCIAL PLANNING SERVICES. TeleTech shall reimburse Xxxxxxxx
for the actual expenses he incurs in securing personal financial planning
services, up to a maximum reimbursement of $10,000 per calendar year.
g. MISCELLANEOUS BENEFITS. Xxxxxxxx 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 Xxxxxxxx'x continuous,
full-time active employment with TeleTech, Xxxxxxxx shall earn twenty days of
paid vacation time. Any unused vacation time in any given calendar year shall
be carried forward to succeeding calendar years. Vacation time shall be
earned incrementally during the year, so that, upon termination of Xxxxxxxx'x
employment, TeleTech shall pay Xxxxxxxx the cash value, less legally required
withholdings, of the prorated portion of his vacation entitlement during the
year of termination, less the value of the vacation time used during that
year, plus the cash value, less legally required withholdings, of any accrued
unused vacation time from previous calendar years.
b. SICK LEAVE AND HOLIDAYS. Xxxxxxxx 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 Xxxxxxxx for his
reasonable expenses in relocating to the Denver, Colorado metropolitan area
up to $150,000, including, without limitation, expenses, such as the payment
of any agent's or broker's fee and other closing costs, incurred by Xxxxxxxx
in connection with the sale of his home, travel expenses for Xxxxxxxx and his
wife between his present residence and Denver, Colorado, and closing costs
associated with Xxxxxxxx'x purchase of a new home in the Denver, Colorado
metropolitan area. All such
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reimbursements shall, if necessary, be grossed up to make Xxxxxxxx whole on
an after-tax basis for his actual out-of-pocket expenses, up to the $150,000
limit.
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 three years,
commencing on the Start Date and ending on the third anniversary thereof.
This Agreement shall be renewed for successive one-year terms if the parties
agree to such renewal in writing at least sixty days before the expiration of
the initial three-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
Xxxxxxxx'x employment without cause during Xxxxxxxx'x first twelve months of
continuous, full-time active employment, then after Xxxxxxxx executes a
separation agreement and legal release in a form satisfactory to TeleTech
(provided that any such agreement shall preserve Xxxxxxxx'x right, if any, to
indemnification under TeleTech's bylaws, articles of incorporation, insurance
policies and/or applicable law, and shall not modify Xxxxxxxx'x obligations,
under applicable law or any agreement, concerning the confidentiality of
information, competition, solicitation or the assignment of intellectual
property rights, or remedies pertaining thereto): (i) TeleTech shall pay
Xxxxxxxx xxxxxxxxx compensation equal to the sum of eighteen months of
Xxxxxxxx'x then-current base salary under paragraph 2(a), above, plus one and
one half times eighty percent of Xxxxxxxx'x then-current base salary, 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; and (ii) all of Xxxxxxxx'x unvested
stock options that would have vested during the remainder of the Xxxxxxxx'x
first year of employment shall immediately vest and become exercisable. If
TeleTech terminates this Agreement at any time without cause under this
paragraph 8(c), pays Xxxxxxxx all salary and vacation compensation earned and
unpaid as of the termination date, and offers to provide Xxxxxxxx xxxxxxxxx
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 Xxxxxxxx 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 Xxxxxxxx'x employment with TeleTech and/or this
Agreement. Because this paragraph 8(c) is intended to provide compensation to
enable Xxxxxxxx to support himself in the event of Xxxxxxxx'x loss of
employment under certain circumstances specified herein, Xxxxxxxx'x right to
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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
Xxxxxxxx'x loss of employment, or Xxxxxxxx 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 upon notice to Xxxxxxxx, with TeleTech's only
obligation being the payment of salary and accrued, unused vacation
compensation earned as of the date of termination and without liability for
severance compensation of any kind, if Xxxxxxxx violates any material term of
this Agreement or any material TeleTech policy, procedure or guideline or if
Xxxxxxxx engages in any of the following forms of misconduct: conviction of,
or a plea of nolo contendere to, any felony or of any 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 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 Xxxxxxxx'x activities under this
Agreement; or intentionally falsifying any document or making any false or
misleading statement relating to Xxxxxxxx'x employment by TeleTech.
Notwithstanding any other provision of this Agreement, TeleTech shall not be
entitled to give notice of termination for discriminatory or harassing
behavior until the following occurs: (i) TeleTech gives Xxxxxxxx at least
fifteen (15) days' written notice of any such claims or allegations of
harassment or discrimination, stating with particularity the facts and
circumstances forming the basis of such claims or allegations and, prior to
any hearing thereon as provided in clause (ii) below, provides to Xxxxxxxx
copies of all witness statements and other written records and documentation
supporting such claims or allegations; and (ii) Xxxxxxxx is given, with the
presence of counsel, a hearing before the Board prior to any determination by
TeleTech of the existence of cause pursuant to this provision, at which
hearing Xxxxxxxx shall have a full and fair opportunity to present evidence
and argument concerning the existence of such cause; and PROVIDED, FURTHER,
that TeleTech shall not act upon any claim or allegation of harassment or
discrimination concerning Xxxxxxxx unless and until TeleTech has received
information giving rise to a duty of inquiry or investigation on TeleTech's
part under applicable law. With respect to conduct other than discriminatory
or harassing behavior, TeleTech shall not be entitled to give notice of
termination of this Agreement for cause unless it first gives Xxxxxxxx no
less than thirty days' written notice of the specific violation and which
notice describes with particularity the actions required on the part of
Xxxxxxxx to cure such violation; provided that such prior notice shall not be
required where the conduct in question is of such a character that it cannot
reasonably be cured.
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f. TERMINATION UPON XXXXXXXX'X DEATH. This Agreement shall
terminate immediately upon Xxxxxxxx'x death. Thereafter, TeleTech shall pay
to Xxxxxxxx'x estate all compensation fully earned, and benefits fully
vested, as of the last date of Xxxxxxxx'x continuous, full-time active
employment with TeleTech, but shall not be required to pay any form of
severance or other compensation concerning or on account of Xxxxxxxx'x
employment with TeleTech or the termination thereof. The principal amount of
any loan made to Xxxxxxxx pursuant to paragraph 2(b)(ii), above, to the
extent not forgiven under that paragraph before the date of Xxxxxxxx'x death,
shall be forgiven upon Xxxxxxxx'x death.
g. TERMINATION BECAUSE OF DISABILITY. During the first ninety
calendar days of any period during which a medical condition renders Xxxxxxxx
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 Xxxxxxxx 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 Xxxxxxxx remains
unable to perform the essential functions of his position but is denied or
otherwise becomes ineligible for benefits under the LTD Plan, then TeleTech
may terminate this Agreement and/or Xxxxxxxx'x employment.
h. TERMINATION BY XXXXXXXX. Upon the occurrence of "Good Cause,"
as that term is defined below, Xxxxxxxx may terminate this Agreement upon
ninety days' prior written notice. If Xxxxxxxx terminates this Agreement for
Good Cause, as defined below, any unpaid principal balance of the Loan and
all interest accrued thereon shall be forgiven, provided that Xxxxxxxx
understands and agrees that TeleTech's forgiveness of the loan or any part
thereof at any time may result in taxable income to Xxxxxxxx, and that such
forgiveness may give rise to a tax withholding obligation on the part of
TeleTech, and Xxxxxxxx agrees to satisfy any such tax withholdings, to the
extent, and only to the extent, that such tax withholdings relate to the
employee's share, but not the employer's matching share, if any, of any such
tax withholdings. As used in this paragraph 8(c), "Good Cause" shall mean (i)
a substantial and material diminution of Xxxxxxxx'x responsibilities and
duties concerning the operation of TeleTech's business; (ii) a material
decrease in Xxxxxxxx'x base salary and/or a material decrease in Xxxxxxxx'x
annual bonus amount (other than for TeleTech performance) and/or a material
decrease in Xxxxxxxx'x 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 Xxxxxxxx, xx measured against
Xxxxxxxx'x responsibilities or duties immediately prior to such change, that
causes Xxxxxxxx to be of materially reduced stature or responsibility; or
(iv) a material change in Xxxxxxxx'x reporting responsibilities or duties, as
measured against Xxxxxxxx'x reporting responsibilities or duties immediately
prior to such
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change, that materially curtails Xxxxxxxx'x ability to perform the services
required of Xxxxxxxx'x position; or (v) the permanent non-voluntary
relocation, to a site outside the Denver, Colorado metropolitan area, of
Xxxxxxxx'x current principal place of performance of services for TeleTech;
or (vi) the occurrence of circumstances establishing constructive discharge
under the common law of the State of Colorado. If Xxxxxxxx terminates this
agreement for Good Cause before the first anniversary of the Start Date 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.
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 Xxxxxxxx'x consent. This Agreement thereafter shall bind, and inure
to the benefit of, TeleTech's successor or assign. Xxxxxxxx shall not assign
either this Agreement or any right or obligation arising hereunder.
10. DISPUTE RESOLUTION.
x. Xxxxxxxx and TeleTech agree that in the event of any
controversy or claim arising out of or relating to Xxxxxxxx'x 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 Xxxxxxxx'x 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
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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 Xxxxxxxx'x 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 the
Xxxxxxxx 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.
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g. Before the arbitration hearing, TeleTech shall be entitled to
take a discovery deposition of Xxxxxxxx and Xxxxxxxx shall be entitled to
take a discovery deposition of one TeleTech representative 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 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(c) 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(c) 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.
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a. GOVERNING LAW. This Agreement, and all other disputes or
issues arising from or relating in any way to TeleTech's relationship with
Xxxxxxxx, 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 the preceding subparagraph 10(j), shall not be
modified by word or deed, except in a writing signed by Xxxxxxxx and the
Chairman of TeleTech's Board.
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.
XXXXXXXX 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
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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.
-------------------------------- By:
Xxxxx Xxxxxxxx --------------------------------
Print name:
Date: ------------------------
--------------------- As its:
----------------------------
Date:
---------------------
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