Exhibit 10.64
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 Xxxxx X. Xxxxxxx ("Employee"), and
shall be effective as of May 15, 2001 ("Effective Date").
1. Appointment.
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a. TeleTech hereby employs Employee as Executive Vice President,
General Counsel and Secretary, and Employee hereby accepts such employment with
TeleTech.
b. Employee 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. 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 his 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.
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a. Salary and Salary Review. Employee's 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, 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 sixty percent of his 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.
3. Stock Options.
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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.
4. Fringe benefits.
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a. Executive Medical and Dental Insurance. Employee 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 Effective Date. TeleTech shall pay premiums for
Employee 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 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 his 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.
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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.
6. Relationship Between this Agreement and Other TeleTech Publications.
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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.
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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 and Employee's continuing compliance
with all terms of such separation agreement, as severance compensation TeleTech
shall: (i) pay Employee the sum of 18 months of Employee's then-current base
salary plus 18 months of Employee's on-target annual bonus (60% of base salary),
both payable in 18 equal monthly installments, less legally required
withholdings, on the first business day of each month, beginning in the month
following the termination date, (ii) provide Employee with such fringe benefits
as he was receiving on the date of termination for a period of 18 months;
provided, however, Employee shall continue to make required co-payments and
premium payments in the amounts or levels existing at the date of termination,
and (iii) 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. 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 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 himself 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 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 his position with reasonable accommodation
(the "Initial Disability Period"), Employee shall continue to receive his 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 he shall remain on leave for as long as he
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 his position then 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. Upon the occurrence of "Good Cause," as
that term is defined below, Employee may terminate this Agreement upon
forty-five 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 material 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, under which the Company's conduct 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), above, he shall be entitled to the severance compensation
specified in paragraph 7(c), above.
h. Post-Termination Statements. In the event Employee or TeleTech
terminates Employee's employment under this Agreement:
i. TeleTech agrees that no TeleTech Executive Officer and no
member of the TeleTech Board of Directors (the "Board") shall defame 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.
ii. Employee shall not defame TeleTech, TeleTech's products,
services or operations, any TeleTech Executive Officer, or any member of the
Board, and shall confine any public comment concerning his 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. Parachute Payment.
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Notwithstanding any other provision of this Agreement or of any other
agreement, contract, or understanding heretofore or hereafter entered into by
Employee with Company, except an agreement, contract, or understanding hereafter
entered into that expressly modifies or excludes application of this paragraph
(an "Other Agreement"), and notwithstanding any formal or informal plan or other
arrangement for the direct or indirect provision of compensation to Employee
(including groups or classes of participants or beneficiaries of which Employee
is a member), whether or not such compensation is deferred, is in cash, or is in
the form of a benefit to or for Employee (a "Benefit Arrangement"), if Employee
is a "disqualified individual," as defined in Section 280G(c) of the Code, any
stock options or restricted stock held by Employee and any right to receive any
payment or other benefit under this Agreement shall not become exercisable or
vested (i) to the extent that such right to exercise, vesting, payment, or
benefit, taking into account all other rights, payments, or benefits to or for
Employee under this Agreement, all Other Agreements, and all Benefit
Arrangements, would cause any payment or benefit to Employee under this
Agreement to be considered a "parachute payment" within the meaning of Section
280G(b)(2) of the Code as then in effect (a "Parachute Payment") and (ii) if, as
a result of receiving a Parachute Payment, the aggregate after-tax amounts
received by Employee from the Company under this Agreement, all Other
Agreements, and all Benefit Arrangements would be less than the maximum
after-tax amount that could be received by Employee without causing any such
payment or benefit to be considered a Parachute Payment. In the event that the
receipt of any such right to exercise, vesting, payment, or benefit under this
Agreement, in conjunction with all other rights, payments, or benefits to or for
Employee under any Other Agreement or any Benefit Arrangement would cause
Employee to be considered to have received a Parachute Payment that would have
the effect of decreasing the after-tax amount received by Employee as described
in clause (ii) of the preceding sentence, then Employee shall have the right, in
Employee's sole discretion, to designate those rights, payments, or benefits
under this Agreement, any Other Agreements, and any Benefit Arrangements that
should be reduced or eliminated
so as to avoid having the payment or benefit to Employee under this Agreement be
deemed to be a Parachute Payment.
9. Successors and Assigns.
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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.
10. Dispute Resolution.
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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 the Confidentiality
Agreement; 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
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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 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, tortuous 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.
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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 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 his 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
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 his 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), 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 his 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.
k. This paragraph 10 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.
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 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 10(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. 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.
Employee 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]
Employee TeleTech Holdings, Inc.
By:
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Xxxxx X. Xxxxxxx
As its:
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Date:
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Date:
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