EXHIBIT 10.59
SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE
THIS SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE (the "Agreement") is made
March 12, 2001 ("Effective Date") by and between Larry Kessler ("Employee") and
TeleTech Holdings, Inc., its parents, subsidiaries, affiliates and each of their
successors, assigns, directors and officers (collectively "the Company").
A. For a period until the Effective Date Employee has been employed by
Company as Chief Operating Officer (the "Employment").
B. Company and Employee wish to resolve any disputes and settle all
claims between them. Therefore, except as otherwise provided in this
Agreement, and without admission of any liability, fact, claim or
defense by either party, the purpose of this Agreement is to bring any
controversies between them to an end and to fully settle and release
any claims arising from the Employment or Employee's separation
therefrom, and any other matters between Employee and Company.
For all of these reasons, the parties enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth
below, the parties agree as follows:
1. Conditioned upon the delivery of this Agreement, executed by Employee and
Company:
(a) On the Effective Date, Employee voluntarily resigns from the
Employment and therefore the Employment shall terminate.
(b) Company acknowledges its obligation to pay Employee all regular wages,
accrued, unused vacation pay, if any, and benefits in accordance with
the Company's practice, through and including the Effective Date, less
offsets, draws, commission payments or advances owed by or previously
received by Employee. Participation in any pension plan shall
terminate on the Effective Date. The terms of each respective
insurance program and/or pension plan shall govern Employee's rights
thereunder.
(c) In exchange for Employee's execution of this Agreement, Company agrees
to provide other consideration as severance, to which Employee
otherwise would not be entitled. Specifically: (i) a payment of
$300,000.00, less ordinary and applicable withholdings, paid in equal
bi-weekly installments over a twelve (12) month period beginning on
the Effective Date, PROVIDED, HOWEVER, that if Employee is over 40
years old, no payments shall be made under subparagraph (i) above,
until the 7 day revocation period shall have expired as provided in
Section 3(d) of this Agreement; (ii) Company shall cancel the entire
unpaid principal balance, interest, charges and fees on that certain
Promissory Note
held by Company, made by Employee, dated April 3, 2000, in the
original principal amount of $100,000 (the "Note") and the Company
acknowledges having withheld all amounts related to cancellation of
the Note; (iii) for a twelve (12) month period beginning on the
Effective Date, Company shall provide Employee with all medical
benefits Company provided Employee before the Effective Date
(Employee's eligibility for COBRA benefits on the Effective Date shall
be determined by applicable law); (iv) Company shall leave in effect
all life insurance policies purchased for Employee by Company through
the date(s) upon which the next premium payment(s) become due, at
which time Employee shall have the option to continue such policies by
paying applicable premiums or such policies will expire; and (v)
Employee shall retain the mobile telephone and personal computer
previously provided him by Company. However, Employee remains solely
responsible for, and Company shall not provide, connectivity or other
services for use of such equipment.
(d) Employee acknowledges and agrees that he shall not be eligible for, or
entitled to receive and therefore releases and waives any claim for,
compensation from Company (including but not limited to base pay,
salary, commissions, bonuses, stock or stock options, employment
benefits (including medical or insurance benefits), unemployment
benefits or vacation pay except as set forth in paragraph 1 of this
Agreement and all of its subparagraphs.
2. (a) In consideration of the mutual promises in this Agreement, Employee,
on behalf of himself, his spouse, and any dependents, heirs,
executors, administrators and assigns, hereby releases and discharges
Company, its shareholders, officers, directors, partners, employees,
agents, predecessors, successors and assigns (collectively,
"Releasees") from any rights, claims, damages, attorneys' fees and
costs, of any kind or nature, whether known or unknown, which Employee
ever had or now has against Releasees by reason of any actual or
alleged act, omission, practice or other matter from the beginning of
time through the Effective Date, including, but not limited to, claims
arising from or relating to the Employment or separation therefrom.
Moreover, Company hereby releases and discharges Employee from any
rights, claims, damages, attorneys' fees and costs, of any kind or
nature, whether known or unknown, which Company ever had or now has
against Employee by reason of any actual or alleged act, omission,
practice or other matter from the beginning of time through the
Effective Date, including, but not limited to, claims arising from or
relating to the Employment or separation therefrom. However, Company
shall not release Employee from, and this release does not include,
claims of criminal conduct by Employee, or conduct that constitutes at
a minimum gross negligence. The matters that are the subject of the
release contained in this paragraph 2 are referred to collectively as
the "Released Matters."
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(b) Without limiting the generality of the foregoing, and subject to
paragraph 2(a) above, this Agreement is intended to and shall release
Releasees and Employee from claims arising from or relating to: (1)
any state, local/municipal, or federal labor or employment laws,
regulations or orders, including, but not limited to the Civil Rights
Act of 1870, 42 U.S.C. Section 1981; the Civil Right Act of 1871, as
amended, 42 U.S.C. Section 1983; Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. 2000, ET SEQ.; the Civil Rights Act of
1991; the Americans with Disabilities Act of 1990, 42 U.S.C. 12101, ET
SEQ.; the Family and Medical Leave Act of 1993, 29 U.S.C. 2612, ET
SEQ.; the Employee Retirement Income Security Act of 1974, as amended,
29 U.S.C. Section 1001, ET SEQ. ; and the Age Discrimination in
Employment Act, as amended (2) any state, local/municipal or federal
wage and hour laws, regulations or orders, including but not limited
to, all claims for wages, commissions, bonuses, stock options,
vacation, severance, unemployment compensation benefits, fees,
benefits or other sum of money or thing of value; (3) all common law
claims based on tort or breach of contract or other theory of recovery
(however Company shall not release Employee for claims of criminal
conduct by Employee, or conduct that constitutes at a minimum gross
negligence), and (4) any claims for attorneys' fees (whether based on
contract, statute or common law).
(c) The parties agree that because they wish to resolve their disputes,
and to forever settle any claims that they may have between them, this
release is to be broadly construed, and any exceptions to the release
are to be narrowly construed.
(d) Employee and Company expressly agree that he or it has not and shall
not institute, commence, prosecute or otherwise pursue any lawsuit,
administrative charge, or other proceeding, action, complaint, claim,
or grievance against Employee or Company, as the case may be, with any
administrative, state, local/municipal, federal or governmental
entity, agency, board or court, with respect to any facts, events or
incidents that occurred or allegedly may have occurred up to and
including the Effective Date in connection with matters released by
this Agreement. Employee and Company further agree that he or it will
cause to be withdrawn or dismissed with prejudice any lawsuit,
administrative charge, or other proceeding, action, complaint or
grievance that has been filed prior to the Effective Date.
(e) Company's obligation to pay Employee the final installment pursuant to
subparagraph 1(c)(i) above shall be conditioned on Employee's delivery
to Company a further legal release, in a form satisfactory to Company,
releasing Company from all claims relating to the Employment or
separation therefrom that legally can be released.
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3. IMPORTANT NOTICE: EMPLOYEE'S FURTHER RELEASE AND WAIVER OF AGE
DISCRIMINATION IN EMPLOYMENT ACT CLAIMS. Employee understands and
acknowledges that:
(a) In signing this Agreement, the parties also intend that Employee, on
behalf of himself, his spouse, and any dependents, heirs, executors,
administrators and assigns, waive and release any claims, damages,
attorneys' fees and costs, of any kind or nature, whether known or
unknown, which Employee ever had or now has against Releasees under
the Age Discrimination in Employment Act, as amended, 29 U.S.C.
Section 621 ET SEQ. ("ADEA"). Thus, in signing this Agreement,
Employee is releasing and waiving all rights to sue the Company under
the ADEA for claims relating to, or arising from, events before the
execution of this Agreement, including claims related to the
Employment and its separation.
(b) Employee is advised and understands that he may consult with an
attorney of his choice prior to executing this Agreement;
(c) Employee has at least 45 days to consider release of ADEA claims. In
the event that Employee should decide to execute this Agreement in
fewer than 45 days, he has done so after the opportunity to consult
with his attorney of choice, and understanding that he has been given
and declined the opportunity to consider this Agreement for a full 45
days;
(d) Employee may revoke his release of ADEA claims at any time during the
7 days following the date this Agreement is executed (the "Revocation
Effective Period"). Employee's release of ADEA claims shall not be
effective or enforceable until the first day following the Revocation
Effective Period. In the event that Employee exercises his right to
revoke the release of ADEA claims, his waiver and release of ADEA
claims shall be void, AND THIS AGREEMENT AT COMPANY'S OPTION MAY BE
CANCELLED; and
(e) Unless Employee delivers to Company written notice of revocation
within the Revocation Effective Period, no revocation shall have
occurred and the release of ADEA claims shall be conclusively final,
binding and irrevocable for all purposes whatsoever.
4. Employee and Company acknowledge that there may be a risk that subsequent
to the execution of this Agreement he or it may incur or suffer damage,
loss or injury to person or property which in some way may allegedly arise
out of or relate to the Released Matters, but which is or are unknown or
unanticipated at the time of the execution of this Agreement. Employee and
Company specifically assume such risk and agree that this Agreement and the
releases contained herein shall and do apply
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to all unknown or unanticipated results of any and all Released Matters, as
well as those currently known or anticipated.
5. Employee further represents and warrants that:
(a) he has no personal knowledge or information regarding:
(i) any negligently or intentionally wrongful or illegal act of or
taken by the Releasees or any of them;
(ii) any negligently or intentionally wrongful or illegal omission by
the Releasees or any of them;
(iii) any act, omission or conduct which could give rise to breach of
contract by the Releasees or any of them;
(iv) the unenforceability of any agreement to which the Releasees or
any of them is a party; or
(v) any improper, wrongful or unfair discrimination or harassment
against any person or entity by the Releasees or any of them.
6. Employee and Company agree that this Agreement shall not in any way be
construed as an admission of wrongdoing by any party hereto, but to the
contrary, represents a compromise of potential disputed claims.
7. Employee further agrees that he will continue to be bound by and will
comply with all of the provisions of this Agreement and any of the
pre-existing agreements executed by Employee at the commencement of and/or
during his employment, which should reasonably survive and are hereby
incorporated by reference as though fully set forth herein, except as to
those terms that the parties have amended, as further set forth in
paragraphs 8 and 16 of this Agreement. Without limiting the foregoing, and
in addition thereto, neither Employee nor any representative of Employee
will reveal any information relating to the terms of this Agreement or any
confidential or proprietary matters disclosed to him during the Employment.
8. Employee further acknowledges and agrees that should he breach any terms of
this Agreement, or any of the pre-existing agreements executed by Employee
with the Company (except the Arbitration Agreement, which is canceled and
superseded by paragraph 16 of this Agreement), including but not limited
to, Repayment Agreement and the Confidentiality Agreement (except that the
parties agree to modify paragraph 2 of the Confidentiality Agreement to
agree that any dispute thereunder will be governed by paragraph16 of this
Agreement in accordance with Colorado
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Law), and Proprietary Information, Invention, And Non-Compete Agreement
(excluding only paragraph 13 of that Agreement on arbitration, which is
canceled and superseded by paragraph16 of this Agreement. Subject to that
change with respect to paragraph 13, the Proprietary Information,
Invention, And Non-Compete Agreement remains in full force and effect);
employee shall forfeit any and all rights he has or may have to
compensation or loan forgiveness under this Agreement.
9. (i) Company agrees that no TeleTech Executive Officer and no member of the
TeleTech Board of Directors shall defame or disparage Employee. Upon
receiving reference requests directed to 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. Upon receiving reference requests directed to
a member of the Board of Directors, Company shall not state that Employee
was fired or terminated by Company. 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 each violation of
this paragraph by TeleTech will be $200,000. (ii) Employee agrees that he
shall not defame or disparage Company, its Directors, Officers or
employees. Additionally, Employee shall not make or issue public or private
comment concerning his separation from the Employment, including but not
limited to comments to securities or industry analysts, shareholders or
employees of Company, the press, other employers or potential employers. If
asked to comment on his separation from TeleTech, Employee shall confine
his response, except as may be required by law, to a statement that
Employee "resigned or stepped down from his position at 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 each violation of this paragraph by Employee will be $200,000
and Employee shall forfeit any and all rights he has or may have to
compensation or loan forgiveness under this Agreement.
10. In making and executing this Agreement, Employee and Company each have not
relied upon any statement or representation, oral or written, made by any
other party to this Agreement with regard to any of the facts involved in
any dispute or possible dispute between the parties hereto, or with regard
to any of their rights or asserted rights, or with regard to the
advisability of making and executing this Agreement.
11. Employee and Company hereby each expressly assume the risk of any mistake
of fact or that the facts ultimately might be other than or different from
the facts now known or believed to exist. It is the express intention of
both parties to forever settle, adjust and compromise any and all disputes
between and among the parties, finally and forever, and without regard to
who may or may not have been correct in their respective understandings of
the facts or the law related thereto.
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12. Employee and Company each have made such investigation of the facts and the
law pertaining to the matters described in this Agreement as he or it deems
necessary, and have not relied and do not rely on any promise or
representation made by any other party with respect to any such matters.
13. Company and Employee each warrant and represent that it or he has the
authority to enter into this Agreement as a binding and enforceable
obligation. Employee further represents and agrees that he has carefully
read and fully understands all of the provisions of this Agreement, that he
has been given the opportunity to discuss fully the contents of this
Agreement with independent counsel of his choice and that he is voluntarily
entering into this Agreement.
14. In addition to the acts described in the Agreement to be performed by each
of the parties, Company and Employee each agree to perform or cause to be
performed all further acts and to execute or cause to be executed promptly
all documents and instruments necessary to give effect to each term of this
Agreement.
15. All parties have cooperated in the drafting and preparation of this
Agreement and it shall not be construed more favorably for or against any
party. The use of the term "Employee" herein is for convenience only and
shall not infer any other status except as specifically provided herein.
16. Employee and Company agree that in the event of any controversy or claim
arising out of or relating to this Agreement, 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.
(a) Excepting only: (1) worker's compensation claims; (2) unemployment
compensation claims; (3) 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 this Agreement 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 16
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
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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.
(b) 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 one year from the Effective
Date, whichever is greater. Otherwise, all claims that were or could
have been brought by the aggrieved party against the other party shall
be forever barred.
(c) 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 Company 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.
(d) 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.
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(e) 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.
(f) Before the arbitration hearing, Company shall be entitled to take a
discovery deposition of Employee and Employee shall be entitled to
take a discovery deposition of one Company 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 16 or ordered
by the arbitrator.
(g) 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; 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.
(h) 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.
(i) 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
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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
16 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.
(j) The parties further agree that the Arbitration Agreement between
Employee and Company is canceled in its entirety, and superseded by
this paragraph 16.
(k) The parties further agree that paragraph 2 of the Confidentiality
Agreement between Employee and Company, is modified only to the extent
that any dispute thereunder if governed by this paragraph 16,
including but not limited to venue, choice of law, and procedure. All
other paragraphs and provisions of the parties' Confidentiality
Agreement shall remain in effect.
(l) The parties further agree that paragraph 13 of the Proprietary
Information, Invention, And Non-Compete Agreement between Employee and
Company, is canceled and superseded by this paragraph 16. All other
paragraphs of the parties' Proprietary Information, Invention, And
Non-Compete Agreement shall remain in effect.
17. This Agreement (including its Attachments, if any) constitutes the entire
agreement between and among the parties pertaining to the subject matter
hereof, and the final, complete and exclusive expression of the terms and
conditions of their Agreement.
18. This Agreement may be executed in one or more counterparts, all of which
taken together shall constitute one agreement.
19. This Agreement shall be governed by, and construed in accordance with,
Colorado law, exclusive of its choice of law rules.
20. No waiver of breach of any of the provisions of this Agreement shall be a
waiver of any preceding or succeeding breach hereof.
21. In the event that any clause, provision or paragraph of this Agreement is
found to be void, invalid or unenforceable, such finding shall have no
effect on the remainder of this Agreement, which shall continue to be in
full force and effect. Each provision of this Agreement shall be valid and
enforced to the fullest extent permitted by law.
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EMPLOYEE:
/s/ Larry Kessler
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COMPANY:
By: /s/ John Simon
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Its: Vice President
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