EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of
March 16, 1999 by and between TeleTech Holdings, Inc., a Delaware corporation
("TELETECH" or "EMPLOYER"), and Vincent Cipolla ("EMPLOYEE").
W I T N E S S E T H:
WHEREAS, Employee currently is employed by Pamet River, Inc., a
Massachusetts corporation ("PAMET"), and Pamet has agreed to merge with and
into a wholly-owned subsidiary of TeleTech (the "MERGER");
WHEREAS, as a condition precedent to consummation of the Merger,
Employer has agreed to employ Employee, and Employee has agreed to accept
employment with Employer, in accordance with the terms and conditions set
forth herein;
WHEREAS, Employer is engaged in the business of providing strategic
assessment of marketing needs, database and integrated marketing services,
such as advertising, direct response and public relations (together with any
similar activities in which the Company is engaged as of the date hereof, the
"BUSINESS");
WHEREAS, Employee has had an opportunity to review the terms and
conditions of this Agreement, to negotiate the terms hereof and to engage
independent legal counsel on his behalf; and
WHEREAS, in consideration of Employer's employment of Employee, the
terms, conditions and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Employee and Employer agree to execute and be bound by this Agreement.
NOW THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. RECITALS. Each of the above recitals is incorporated into this
Agreement and is binding upon the parties hereto.
2. EMPLOYMENT; DUTIES.
(a) Employer hereby employs Employee as Chief Executive
Officer of Pamet, as it is operated after the Merger as a separate division
or subsidiary of TeleTech (the "DIVISION"), and as Chief Marketing Officer of
TeleTech, and Employee hereby accepts such employment with Employer.
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 Employer and
shall use his best efforts to promote the business and prospects of Employer.
Unless otherwise specifically
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agreed in writing by Employer, Employee shall not engage in any other
business activity or be gainfully employed other than pursuant to this
Agreement. Employee acknowledges that, as part of his employment duties
hereunder, Employee may be required to perform services for subsidiaries of
Employer, on behalf of and as requested by Employer.
(b) In performing his duties hereunder, Employee shall
report directly to, and shall be subject to the supervision of, (i) Kenneth
D. Tuchman, so long as he serves as the Chairman of the Board and as the
Chief Executive Officer and President of TeleTech, or (ii) if and after
Kenneth D. Tuchman ceases to serve as the Chief Executive Officer and
President of TeleTech, the President of TeleTech; provided that the President
of TeleTech reports directly to the Chairman of the Board of TeleTech,
otherwise Employee shall report directly to and shall be subject to the
supervision of the Chief Executive Officer of TeleTech. Employee shall have
such authority and responsibilities with respect to the Division that are
commensurate with the authority and responsibility of the chief executive
officer (or the equivalent) of other comparable operating subsidiaries of
TeleTech, including the authority to hire and fire employees of the Division.
3. BASE COMPENSATION. Employer shall pay to Employee the sum of
$350,000.00 per year (the "SALARY") less applicable income tax withholdings.
The Salary shall be payable in equal bi-weekly installments in accordance
with Employer's customary compensation policies.
4. PERFORMANCE BONUSES.
(a) ANNUAL BONUS. Employee will be entitled to receive an
annual bonus of up to 50% of the Salary (the "ANNUAL BONUS") if the Employee
and the Division achieve certain performance targets and management
objectives mutually established by Employee and Employer prior to the first
day of each fiscal year (or as soon thereafter as practicable); PROVIDED
that, the performance targets and objectives with respect to fiscal 1999
shall be mutually agreed by Employee and Employer no later than 90 days after
the date hereof. The financial statements of the Division, as compiled in
connection with the annual audit of Employer's consolidated financial
statements for any fiscal year, shall be conclusive evidence of whether
Employee is entitled to all or any portion of the Annual Bonus for such
fiscal year, to the extent such performance target can be derived therefrom.
The Annual Bonus, or any portion thereof to which Employee is entitled, shall
be paid to Employee no more than ten business days after the date of the
report issued by TeleTech's independent auditors with respect to TeleTech's
consolidated financial statements for the fiscal year to which the Annual
Bonus relates.
(b) CONTINGENT BONUS. Employee will be entitled to receive
a bonus (the "CONTINGENT BONUS") pursuant to the Pamet River, Inc. Bonus
Plan, a copy of which is attached hereto as EXHIBIT A (the "PLAN"), if and to
the extent that the Division achieves the Operating Income Targets specified
in the Plan. The determination of whether Employee is entitled to the
Contingent Bonus, and the amount and method of payment of the Contingent
Bonus with respect to any fiscal year, shall be governed by the provisions of
the Plan.
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(c) OTHER BONUS. Employee will be entitled to participate
in such other bonus plans that Employer may, in its sole discretion, make
generally available to senior management of Employer.
5. EMPLOYEE BENEFITS.
(a) HOLIDAYS AND VACATION TIME. Employee shall be entitled
to such paid holidays and vacation time as is consistent with Employer's
standard holiday and vacation policy applicable to senior management of
Employer.
(b) SICK LEAVE. Employer will continue to pay the Salary in
full during any absences due to illness or involuntary injury in accordance
with Employer's standard sick leave policy applicable to senior management of
Employer. Under Employer's standard policy as in effect on the date hereof
(which may be amended in Employer's discretion), Employee is entitled to a
period of absence due to illness or involuntary injury of up to six days in
each 12-calendar month period, which entitlement accrues separately with
respect to each 12-month period. Upon request by Employer, Employee must
provide evidence, to the reasonable satisfaction of Employer, that any
absence was due to illness or involuntary injury of Employee.
(c) OTHER BENEFITS. Subject to Employer's rules, policies
and regulations as in effect from time to time (and subject to applicable
eligibility requirements, including minimum employment period), Employee
shall be entitled to all other rights and benefits for which Employee may be
eligible under any: (i) group life insurance, disability or accident, death
or dismemberment insurance, (ii) medical and/or dental insurance program,
(iii) 401(k) benefit plan, (iv) non-qualified deferred compensation plan, or
(v) other employee benefits that Employer may, in its sole discretion, make
generally available to senior management of Employer; PROVIDED, HOWEVER, that
nothing herein shall obligate Employer to establish or maintain any of such
benefits or benefit plans.
(d) SENIORITY. Employer agrees that, for employee benefits
purposes, Employee shall be given credit (as an employee of Employer) for his
period of service with Pamet and shall maintain his seniority (as recognized
by Pamet as of the date hereof).
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6. PARTICIPATION IN STOCK PLAN.
(a) STOCK OPTIONS GRANTED. Employer agrees to grant to
Employee an option to purchase 300,000 shares of TeleTech common stock, par
value $.01 per share ("COMMON STOCK"), which option will be granted on or
about the date of this Agreement (the "OPTION"). The Option will be granted
pursuant to TeleTech's 1999 Stock Option and Incentive Plan, which will be
submitted for the approval of the stockholders of TeleTech at its Annual
Meeting of Stockholders to be held in May 1999 or, if such approval is not
sought or obtained, TeleTech's existing Stock Plan, as Amended and Restated,
or any other similar stock option plan adopted by TeleTech (the applicable
plan, the "STOCK PLAN"). The Option will (i) have an exercise price equal to
the fair market value of the Common Stock on the grant date, (ii) vest pro
rata over the five years following the date of grant (subject to acceleration
in accordance with the terms set forth in the option agreement executed by
Employee and TeleTech), and (iii) otherwise be governed by and subject to the
terms of the Stock Plan and TeleTech's standard form of option agreement for
the Stock Plan, which shall be executed by TeleTech and Employee concurrently
with the grant of such Option.
(b) OTHER STOCK PLAN BENEFITS. Subject to Employer's rules,
policies and regulations as in effect from time to time (and subject to
applicable eligibility requirements, including minimum employment period),
Employee may be eligible to receive other benefits under the Stock Plan and
under the TeleTech Holdings, Inc. Employee Stock Purchase Plan, which
benefits will be granted in the sole and absolute discretion of the
committees administering such plans and will be subject to the terms of such
plans. Employee's receipt of any such benefits will be contingent upon
Employee signing such option agreements or other instruments that Employer
deems to be necessary or appropriate and to such other restrictions as are
required by the plans and/or applicable law.
(c) EMPLOYER'S SOLE DISCRETION REGARDING STOCK, ETC.
Subject to Section 6(a), Employee acknowledges and agrees that Employer has
the right, in its sole discretion, to make all decisions regarding its stock,
stock rights, Stock Plan benefits, profits, debt and equity configuration,
including but not limited to what types, when and to whom to issue stock,
stock rights, Stock Plan benefits, profits, debt and equity interests.
7. TERM.
(a) The term of this Agreement and Employee's employment
hereunder shall commence as of the date hereof and shall terminate on the
date two years after the date hereof (the "TERM"). Subject to Sections 7(b)
and 8(b), upon expiration of the Term, Employee will be entitled to only (i)
unpaid compensation for services rendered through the date of termination
(including a pro rata amount of the Salary and any Annual Bonus and
Contingent Bonus earned but not paid), (ii) employee benefits through the
date of termination, and (iii) subject to the terms of the Stock Plan and
applicable award agreement, benefits under the Stock Plan awarded and vested
prior to the date of termination.
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(b) If Employer terminates Employee's employment hereunder
prior to expiration of the Term other than "For Cause" (an "INVOLUNTARY
TERMINATION"), then Employee shall be entitled to receive (i) a pro rata
amount of the Salary from the date of termination until the earlier of six
months after the date of termination or the expiration of the Term, and (ii)
a pro rata portion of the Annual Bonus for the fiscal year in which the
termination occurred, computed through the earlier of six months after the
date of termination or the end of the Term, if and to the extent that the
performance targets and management objectives with respect to the Annual
Bonus for such fiscal year have been achieved on a year-to-date basis as of
the date of termination. An Involuntary Termination shall include Employee's
voluntarily termination of his employment hereunder (A) within 30 days after
Employer materially reduces Employee's duties and responsibilities hereunder
or effects a permanent change in Employee's duties and responsibilities that
are materially inconsistent with Employee's duties and responsibilities then
in effect (other than as a result of Employee's repeated failure to meet
performance levels or management objectives as then in effect), (B) within 30
days after Employer's receipt of written notice from Employee that Employer
is in material breach of its obligations under this Agreement, which material
breach has not been cured during such 30-day period, or (C) promptly after
Employer requires or demands that Employee do something known to be
unethical, immoral or illegal.
8. TERMINATION FOR CAUSE.
(a) Notwithstanding Section 7, Employer may terminate
Employee's employment immediately upon the occurrence of any of the following
(each, a termination "FOR CAUSE"):
(i) the death of Employee;
(ii) Employee's failure or inability to fully perform his
duties hereunder as a result of any mental, physical or emotional
disability or condition that lasts, or is reasonably expected to last,
for 90 days (whether or not consecutive) in any 12-month period or for
any 60 consecutive days, which disability or condition shall be
determined, in Employer's discretion, by a physician selected by Employer
subject to Employee's reasonable approval (which approval shall not be
unreasonably delayed or denied);
(iii) Employee's substantial or repeated failure to meet
performance levels or management objectives as established by Employer
from time to time;
(iv) Employee's failure to comply with (A) any lawful
directives, rules or policies of the Board of Directors of Employer or
any officer of Employer to whom Employee reports or (B) Employer's
employee code of ethics, as the same may be adopted and amended from time
to time;
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(v) Employee's conviction or plea of nolo contendere for
any felony or any crime involving moral turpitude, or the commission by
Employee of theft, embezzlement, fraud, misappropriation of funds, breach
of fiduciary duty, abuse of trust or the violation of any other law or
ethical rule relating to Employee's employment;
(vi) Employee's unexplained and repeated absence from
work or Employee's failure to perform his duties hereunder, which failure
amounts to a material neglect of his duties to Employer and is not cured
within 10 days after written notice thereof by Employer;
(vii) Employer's reasonable belief that Employee has
breached any other material covenant or agreement of this Agreement,
including, without limitation, Sections 10 and 11, and such breach is
incapable of cure or, if curable, Employee has not remedied such breach
within seven days of receipt of notice from Employer specifying the
breach; or
(viii) the impending threat upon Employer, as determined by
Employer in its reasonable discretion, of any criminal or civil liability
caused by or arising out of the unlawful action or inaction of Employee.
(b) In the event Employee is terminated "For Cause,"
Employee will be entitled to receive only (i) unpaid compensation (including
a pro rata amount of the Salary) for services rendered through the date of
termination, (ii) employee benefits through the date of termination, and
(iii) subject to the terms of the Stock Plan, benefits under the Stock Plan
awarded and vested prior to the date of termination that are not forfeited as
a result of such termination.
9. INVENTIONS AND OTHER MATTERS.
(a) Employee agrees that all ideas, inventions, discoveries
or improvements made at any time during the period of Employee's employment
(as determined in accordance with Section 9(b)), including, without
limitation, new machines, devices, computer software (including, without
limitation, source code, operating systems and specifications, data, data
bases, files, documentation and other materials related thereto), programs,
processes, uses, apparatuses, specialized information relating in any way to
or is useful in the business or products of Employer or Employer's actual or
demonstrably anticipated research or development, trade marks or service
marks, designs or compositions of any kind that Employee, individually or
with others, that may originate or develop or has originated or been
developed, while employed by Employer (collectively, "INVENTIONS"), shall
belong to and be the sole property of Employer and shall constitute works
made pursuant to Employee's employment with Employer or works specially
ordered or commissioned as "works made for hire" under the United States
Copyright Act and other applicable law. Without limiting the foregoing,
Employee hereby assigns and transfers to Employer all rights, title, and
interest of whatever nature that Employee may have, including, without
limitation, any patent, trade secret, trademark or service mark rights (and
any goodwill
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appurtenant thereto), any rights of publicity and any right, title and
interest in any copyright and any right that may affix under any copyright
law now or hereinafter in force and effect, in the United States or in any
other country or countries, in and to any Invention. Employee acknowledges
and agrees that Employer also shall have the royalty-free right to use in its
businesses, and to make and sell products, processes, programs, systems
designs, methods, formulas, apparatus, techniques, and services derived from
any Inventions (whether or not patentable or copyrightable), as well as all
improvements thereof or know-how related thereto. The provisions of this
Section 9 extend back nunc pro tunc to the Employee's date of first
employment by Pamet and by Employer and extend into the future. Further, the
provisions of this Section 9 shall survive termination of this Agreement for
any reason.
(b) For purposes of this Agreement, an Invention shall be
deemed to have been "made at any time during the period of Employee's
employment" if, during such period, the Invention was conceived, in part or
in whole, or first actually reduced to practice. Employee agrees that any
patent, copyright or trade mark application filed by or for the benefit of
Employee or any of his affiliates within one year after termination of
Employee's employment shall be presumed to relate to an Invention made during
the term of his employment and Employee shall have the burden of proof to
prove otherwise.
(c) This Section 9 shall not apply to an Invention for which
no equipment, supplies, facilities or Confidential Information of Employer
was used and that was developed entirely on Employee's own time, unless (i)
the invention relates in any way to or is useful in the business or products
of Employer, or Employer's actual or demonstrably anticipated research or
development, or (ii) results from any work performed by Employee for or on
behalf of Employer.
(d) Employee agrees, without further consideration, to (i)
promptly disclose each such Invention to Employer, to Employee's immediate
supervisor and to such other individuals as Employer may direct, (ii) execute
and to join others in executing such applications, assignments and other
documents as may be necessary or convenient to vest in Employer, or its
designee, full title to each such Invention and as may be necessary or
convenient to obtain United States and foreign patents and copyrights
thereon, to the extent Employer may so choose in its sole discretion, (iii)
testify in any legal proceeding relative to such Invention whenever requested
to do so by Employer, and (iv) furnish all facts relating to said Inventions
or the history thereof.
(e) Employee agrees that he will not any time, except as
authorized or directed by Employer, publish or disclose any information or
knowledge constituting or concerning any Invention or Inventions.
10. CONFIDENTIAL INFORMATION.
(a) Employee recognizes that he will occupy a position of
trust with respect to Employer and that, in connection with the performance
of his duties, Employer will make available to Employee, and Employee will
have access to, certain Confidential Information (as
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defined herein). Employee acknowledges and agrees that any and all
Confidential Information learned or obtained by Employee during the course of
his employment by Employer or otherwise, whether developed by Employee alone
or in conjunction with others or otherwise, shall be and is the property of
Employer and its affiliates.
(b) Employee shall not disclose, directly or indirectly, and
will keep confidential any and all Confidential Information and will not use
any Confidential Information, in any manner, other than in connection with
Employee's discharge of his duties hereunder. The provisions of this Section
10 shall survive termination of this Agreement for any reason.
(c) Employee shall return promptly to Employer upon the
earliest to occur of termination of this Agreement, termination of Employee's
employment with Employer and Employer's request, any and all copies of
Confidential Information and all copies of any analyses, compilations,
studies or other documents containing or reflecting Confidential Information.
(d) For purposes of this Agreement, the term "CONFIDENTIAL
INFORMATION" means all information, data, know-how, systems and procedures of
a technical or commercial nature owned by or relating to Employer or any of
its affiliates, whether prior to, during or after the termination or
expiration of this Agreement, including but not limited to all ideas,
concepts, experimental and research data; computer software, including,
without limitation, source code, operating systems and specifications,
programs, data, data bases, files, documentation and other materials related
thereto; service techniques and protocols, business and marketing plans;
information relating to financial information, pricing, cost and sales
information, contractual arrangements, advertising and promotions, market
research data and other information about Employer's and its affiliates'
actual and prospective employees, customers, suppliers and vendors; patents
and patent applications, inventions and improvements (whether patentable or
not), development projects, designs, practices, recipes, processes, methods,
know-how, techniques and other facts relating to the business of Employer and
its affiliates; and all other trade secrets and information of a confidential
and proprietary nature. WITHOUT IN ANY WAY LIMITING THE FOREGOING,
"CONFIDENTIAL INFORMATION" ALSO INCLUDES ALL INFORMATION RELATING TO ANY
OPTIONS OR OTHER AWARDS GRANTED TO EMPLOYEE, PURSUANT TO THE STOCK PLAN OR
OTHERWISE, INCLUDING THE AMOUNT OF ANY SUCH AWARD, THE EXERCISE PRICE AND THE
RATE OF VESTING THEREOF.
(e) Employee hereby acknowledges that each parent,
subsidiary and other affiliate of Employer is expressly made a third party
beneficiary hereto for purposes of protecting its rights and interests
hereunder.
11. NON-COMPETITION.
(a) Employer and Employee recognize that Employee has been
retained to occupy a position that constitutes part of the professional,
management and executive staff of
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Employer, whose duties will include the formulation and execution of
management policy. Employee, for and in consideration of the payments,
rights and benefits provided herein, agrees that so long as he is employed by
Employer and, if Employer terminates his employment For Cause or if Employee
voluntarily terminates his employment with Employer (other than an
Involuntary Termination), for a period of one year thereafter, Employee shall
not (i) work, (ii) assist, (iii) own any interest, directly or indirectly and
whether individually or as a joint venturer, partner, member, officer,
director, shareholder, consultant, employee or otherwise, in or (iv) make a
financial investment, whether in the form of equity or debt, in any business
that is directly competitive with the Business in the United States,
Australia, New Zealand, the United Kingdom, Mexico, Canada or in any other
market in which Employer is conducting business at the time Employee's
employment with Employer is terminated, with respect to Employer's clients or
customers.
(b) Notwithstanding the foregoing, nothing herein shall
prohibit Employee from holding 5% or less of any class of voting securities
of any entity whose equity securities are listed on a national securities
exchange or regularly traded in the over-the-counter market and for which
quotations are readily available on the National Association of Securities
Dealers Automated Quotation system.
(c) Upon the termination of Employee's employment with
Employer, and for one year thereafter, Employee shall immediately notify
Employer of each employment or agency relationship entered into by Employee,
and each corporation, proprietorship or other entity formed or used by
Employee, the business of which is directly or indirectly, similar to or in
competition with the business of Employer. The provisions of this Section 11
shall survive termination of this Agreement for any reason.
(d) Employee agrees that the restrictions contained in this
Section 11 are reasonable as to time and geographic scope because of the
nature of the Business and Employee agrees, in particular, that the
geographic scope of this restriction is reasonable because companies in the
same industry as the Business compete on a nationwide basis. Employee
acknowledges that the Company is in direct competition with all other
companies that provide services similar to the Company's products and
services throughout the United States, Australia, New Zealand, the United
Kingdom, Mexico, Canada and other markets in which Employer may be conducting
business at the time Employee's employment with Employer is terminated, and
because of the nature of the business, Employee agrees that the covenants
contained in this Section 11 cannot reasonably be limited to any smaller
geographic area.
12. NON-SOLICITATION AND NON-INTERFERENCE.
(a) Employee acknowledges that Employer has invested and
will continue to invest substantial time and effort in assembling its present
staff of personnel. Employee agrees that so long as he is employed by
Employer and, if Employer terminates his employment For Cause or if Employee
voluntarily terminates his employment with Employer (other than an
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Involuntary Termination), for a period of one year thereafter, Employee shall
not either directly or indirectly employ, solicit for employment, or advise
or recommend to any other person that such other person employ or solicit for
employment, any of Employer's employees.
(b) Employee acknowledges that all customers of Pamet or
Employer, which Employee has serviced or hereafter services during Employee's
employment by Pamet or Employer and all prospective customers from whom
Employee has solicited or may solicit business while in the employ of
Employer, are and shall be customers solely of Employer. Employee agrees
that so long as he is employed by Employer and, if Employer terminates his
employment For Cause or if Employee voluntarily terminates his employment
with Employer (other than an Involuntary Termination), for a period of one
year thereafter, Employee shall not directly or indirectly solicit business,
as to products or services competitive with the Business of Employer, from
any of Employer's customers with whom Employee had contact during his
employment with Employer.
(c) Employee agrees that so long as he is employed by
Employer and, if Employer terminates his employment For Cause or if Employee
voluntarily terminates his employment with Employer (other than an
Involuntary Termination), for a period of one year thereafter, Employee shall
not directly or indirectly interfere with any relationship between Employer
and any of its suppliers, clients or employees. Employee agrees that during
such one year period, he will not influence or attempt to influence any of
the customers or clients of Employer not to do business with Employer.
(d) Employee agrees that the restrictions contained in this
Section 12 are reasonable as to time and geographic scope because of the
nature of the Business and Employee agrees, in particular, that the
geographic scope of this restriction is reasonable because companies in the
same industry as the Business compete on a nationwide basis. Employee
acknowledges that the Company is in direct competition with all other
companies that provide services similar to the Company's products and
services throughout the United States, Australia, New Zealand, the United
Kingdom, Mexico, Canada and other markets in which Employer may be conducting
business at the time Employee's employment with Employer is terminated, and
because, of the nature of the Business, Employee expressly agrees that the
covenants contained in this Section 12 cannot reasonably be limited to any
smaller geographic area.
13. EMPLOYMENT RELATIONSHIP. The relationship between Employer and
Employee is and shall be specifically limited to an employer/employee
relationship. As a result, nothing contained in this Agreement or relating
to any past, present or future relationship between Employee and Employer
(employment or otherwise) shall be construed as creating any partnership,
joint venture, trustee/beneficiary or other type of fiduciary or business
relationship between the parties.
14. PRIOR OBLIGATIONS. Employee represents and warrants that (a)
Employee has no obligation of confidence or other commitments to any previous
employer or any others that
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conflict with this Agreement or restrict Employee's field of activities,
except those, if any, as set forth on SCHEDULE B hereto, and (b) no other
agreement to which Employee is subject will conflict with, prevent, be
breached by, interfere with or in any manner affect the terms and conditions
of this Agreement.
15. DEDICATION OF SERVICES. Employee agrees that while employed
with Employer, Employee shall devote his entire productive time, ability and
attention to the business of Employer during Employer's normal business
hours. Employee further agrees that during his employment by Employer,
Employee will not, without Employer's prior written consent, directly or
indirectly engage in any employment, consulting, or other activity that would
conflict with Employee's employment with Employer.
16. USE OF EMPLOYEE IN VIDEOS AND OTHER MEDIA. Employee
acknowledges that part of Employee's duties may entail Employee's
participation in both audio and video training aids, such as photographs,
films, video tapes, audio tape recordings and the like. Employee agrees that
during the Term and for so long thereafter as Employer may, in its sole and
absolute discretion, desire to use such training aids in which Employee has
been involved (whether by filming or photographing Employee, audio or video
taping of Employee, combinations thereof, or in any other manner whatsoever)
Employer may use any and all such training aids, without further consent or
approval from Employee, in Employer's usual business operations and training
programs.
17. USE OF EMPLOYEE IN ADVERTISING. Employee acknowledges and
agrees that Employer may, in Employer's discretion, use Employee's name and
photograph in certain advertising media primarily for the benefit of
Employer. Employee understands that such advertising requires substantial
lead time to prepare and is usually purchased several months in advance of
the actual appearance of the advertising in selected media. Employee
therefore agrees that Employer may, throughout the Term and for a reasonable
time after the termination of such employment (but not to exceed six months),
for any cause or reason whatsoever, use Employee's name and photograph in
connection with all advertising deemed necessary or desirable by Employer, in
its sole and absolute discretion.
18. EMPLOYEE'S DUTIES UPON TERMINATION. Employee understands and
agrees that all documents and notes written by Employee within the scope of
his employment with Employer and any and all original and copies of documents
Employee received or created while employed by Employer, including but not
limited to all correspondence, memoranda, letters, call reports, notes, price
lists, training or other manuals, mailing lists, customer lists, advertising
materials, information regarding Employer's clients and customers,
information regarding Employer's suppliers, information regarding Employer's
operations, information regarding Employer's computer programs or equipment,
information regarding technology used by Employer, and financial documents,
whether such documents constitute Confidential Information, belong
exclusively to Employer. Employee shall return all of such materials to
Employer promptly upon
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the earlier to occur of termination of this Agreement or termination of
Employee's employment with Employer.
19. AGREEMENT TO ARBITRATE.
(a) Employer and Employee hereby mutually agree that any disputes
that arise between Employee and Employer or any of its officers, directors,
stockholders, supervisors, co-employees, agents, partners, subsidiaries,
affiliates or successors that cannot be resolved informally shall be decided
by submission of the dispute to binding arbitration before a sole neutral
arbitrator of JAMS/ENDISPUTE who is a retired judge, at 73 Tremont Street,
Boston, MA 02108 pursuant to the AAA's Commercial Arbitration Rules governing
such proceedings, and not by a lawsuit or by resort to court process, except
as specifically set forth below. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT
THEY ARE GIVING UP THEIR RESPECTIVE CONSTITUTIONAL RIGHTS TO HAVE ANY SUCH
DISPUTE DECIDED IN A COURT OF LAW BEFORE A JURY, AND INSTEAD ARE ACCEPTING
THE USE OF THE ARBITRATION PROCESS.
(b) SCOPE OF ARBITRATION. Except as specifically excluded
herein, this Section 19 applies to any and all disputes, INCLUDING, BY WAY OF
EXAMPLE ONLY AND NOT LIMITED TO, disputes regarding termination of Employee's
employment; discrimination and unlawful harassment of any kind (including,
without limitation, claims arising under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. Section 2000(e) ET SEQ. and the Civil Rights Act
of 1991; the Age Discrimination in Employment Act, as amended, 29 U.S.C.
Section 621, ET SEQ.; the Americans with Disabilities Act of 1990, 42 U.S.C.
Section 12101 ET SEQ.; the Family and Medical Leave Act of 1993, 29 U.S.C.
Section 2612 ET SEQ.; and all applicable state and local anti-discrimination
laws and constitutional provisions); disputes arising under any other
applicable federal, state or local labor statutes, regulations or orders;
disputes regarding assault and battery; negligent supervision; defamation;
invasion of privacy; wages and overtime; and disputes regarding the formation
and enforceability of this Section 19. The following types of disputes are
excluded from the scope of coverage of this Section 19: (i) workers'
compensation claims by Employee for on-the-job injuries; and (ii) any and all
claims by Employer against Employee, including claims for injunctive relief,
arising out of Employee's breach or threatened breach of Sections 9, 10, 11
and 12 of this Agreement.
(c) GENERAL RULES AND CONDUCT OF ARBITRATIONS.
(i) RIGHT TO COUNSEL. Either party shall have the
right to have counsel represent him/it at the arbitration hearing and in
pre-arbitration proceedings.
(ii) DISCOVERY. Employer and Employee hereby agree
that pre-arbitration discovery shall be permitted in accordance with the
Federal Rules of Civil Procedure, except that (A) there shall be no limit on
the number of depositions that may be noticed by either party, and (B) in
connection with any pre-arbitration disclosure of expert testimony in
accordance with Rule 26(a)(2), the timing of the expert disclosure shall be
set by the arbitrator.
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(iii) AUTHORITY OF ARBITRATOR. The arbitrator shall
have the authority to (A) resolve any discovery disputes that arise between
the parties and to hold conferences by telephone or in person as necessary;
(B) resolve any dispute relating to the interpretation, applicability or
enforceability of this Section 19; and (C) entertain a motion to dismiss and
a motion for summary judgment, applying the standards governing such motions
under Federal Rule Of Civil Procedure 12(b)(6) and Rule 56. The arbitrator
is required to render his decision in writing, with an opinion stating the
bases of his decision.
(iv) TRANSCRIPT. Either party has the right to have a
written transcript made of the arbitration proceedings. The transcript shall
be paid for by the party requesting it.
(v) BRIEFS. Either party has the right to file a
post-arbitration brief, which shall be considered by the arbitrator.
(d) PAYMENT OF COSTS AND FEES. Each party shall bear its
own costs and attorneys' fees incurred in connection with the arbitration.
The arbitrator shall have the discretion to award costs to the prevailing
party. The arbitrator's fees shall be borne equally by the parties. Each
party shall post his or its portion of the arbitrator's anticipated fee prior
to the commencement of the arbitration.
(e) APPEALS. Either side shall have the right to appeal the
arbitrator's decision by applying to a court of competent jurisdiction (as
defined herein) for an order vacating the award for any of the reasons set
forth in 9 U.S.C. Section 10, or on the basis that the arbitrator has made a
mistake of law or fact. The arbitration decision shall stand if it is
supported by substantial evidence. Where the parties to the arbitration meet
the diversity of citizenship requirements set forth in 28 U.S.C. Section 1332
and the amount in controversy exceeds $50,000, exclusive of interest and
costs, or where the arbitration has decided a federal question as defined in
28 U.S.C. Section 1331, the court of competent jurisdiction to which the
appeal must be made shall the United States court in and for the district
wherein the award was made. Where the parties are not diverse and the
arbitrator has not decided a federal questions, the court of competent
jurisdiction to which the appeal must be made shall the state trial court in
and for the district wherein the award is made.
20. JURISDICTION FOR NON-ARBITRABLE DISPUTES; SERVICE OF PROCESS.
Each of the parties hereto agrees and acknowledges that all actions or
proceedings initiated by Employer against Employee and arising directly or
indirectly out of Sections 9, 10, 11 and/or 12 of this Agreement are excluded
from the arbitration provisions of Section 19. The parties further agree
that all such actions that are brought to judicial proceedings shall be
litigated in the United States District Court for the district of Colorado
or, in the event such court cannot or will not exercise jurisdiction, in the
state courts of the State of Colorado (the "COURTS"). Each of the parties
hereto expressly submits to the jurisdiction and venue of the Courts and
consents to process being served in any suit, action or proceeding of the
nature referred to above either (a) by the mailing of a copy thereof by
registered or certified mail, postage prepaid, return receipt requested, to
his or its address as set forth herein or (b) by serving a copy thereof upon
such party's authorized agent for
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service of process (to the extent permitted by applicable law, regardless
whether the appointment of such agent for service of process for any reason
shall prove to be ineffective or such agent for service of process shall
accept or acknowledge such service); PROVIDED that, to the extent lawful and
practicable, written notice of said service upon said agent shall be mailed
by registered or certified mail, postage prepaid, return receipt requested,
to the party at his or its address as set forth herein. Each party hereto
agrees that such service, to the fullest extent permitted by law, (i) shall
be deemed in every respect effective service of process upon him or it in any
such suit, action or proceeding and (ii) shall be taken and held to be valid
personal service upon and personal delivery to him or it. Each party hereto
waives any claim that the Courts are an inconvenient forum or an improper
forum based on lack of venue or jurisdiction. Each party shall bear its own
costs and attorneys' fees incurred in connection with any such actions or
proceedings.
21. INJUNCTIVE RELIEF. Employee acknowledges that damages would be
an inadequate remedy for Employee's breach of any of the provisions of
Sections 9, 10, 11 and/or 12 of this Agreement, and that breach of any of
such provisions will result in immeasurable and irreparable harm to Employer.
Therefore, in addition to any other remedy to which Employer may be entitled
by reason of Employee's breach or threatened breach of any such provision,
Employer shall be entitled to seek and obtain a temporary restraining order,
a preliminary and/or permanent injunction, or any other form of equitable
relief from any court of competent jurisdiction restraining Employee from
committing or continuing any breach of such Sections, without the necessity
of posting a bond. It is further agreed that the existence of any claim or
cause of action on the part of Employee against Employer, whether arising
from this Agreement or otherwise, shall in no way constitute a defense to the
enforcement of the provisions of Section 9, 10, 11 or 12 of this Agreement.
22. MISCELLANEOUS.
(a) NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given (i) when made, if delivered
personally, (ii) three days after being mailed by certified or registered
mail, postage prepaid, return receipt requested, or (iii) two days after
delivery to a reputable overnight courier service, to the parties, their
successors in interest or their assignees at the following addresses, or at
such other addresses as the parties may designate by written notice in the
manner aforesaid:
To Employer:
TeleTech Holdings, Inc.
1700 Lincoln Street, Suite 1400
Denver, Colorado 80203
Attention: President
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To Employee, to his home address as then recorded on
the books and records of Employer.
(b) GOVERNING LAW. This Agreement shall be governed as to
its validity and effect by the internal laws of the State of Colorado,
without regard to its rules regarding conflicts of law.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of (i) the heirs, executors and legal
representatives of Employee, upon Employee's death, and (ii) any successor of
Employer, and any such successor shall be deemed substituted for Employee or
Employer, as the case may be, under the terms hereof for all purposes. As
used in this Agreement, "successor" shall include any person, firm,
corporation or other business entity that at any time, whether by purchase,
merger, consolidation or otherwise, directly or indirectly acquires a
majority of the assets, business or stock of Employer. Employee acknowledges
and agrees that the rights and obligations of Employer hereunder may be
assigned to and assumed by any of its wholly or majority-owned subsidiaries,
without Employee's consent, which assignment and assumption shall constitute
a release of TeleTech, its subsidiaries or any of their respective affiliates
that is then bound by the terms of this Agreement, of all of its obligations
and liabilities hereunder.
(d) INTEGRATION. This Agreement (together with any option
agreement Employer may require Employee to execute in order to avail himself
of any Stock Plan benefits specifically contemplated herein and any agreement
to release and hold harmless Employer executed concurrently herewith)
constitutes the entire agreement between the parties with respect to all
matters covered herein, including but not limited to the parties' employment
relationship and Employee's entitlement to compensation, commissions and
benefits from Employer or any of its affiliated companies and/or the
termination of Employee's employment. This Agreement supersedes all prior
oral or written understandings and agreements relating to its subject matter
and all other business relationships between Employer and/or its affiliated
companies.
(e) NO REPRESENTATIONS. No person or entity has made or has
the authority to make any representations or promises on behalf of any of the
parties which are inconsistent with the representations or promises contained
in this Agreement, and this Agreement has not been executed in reliance on
any representations or promises not set forth herein. Specifically, no
promises, warranties or representations have been made by anyone on any topic
or subject matter related to Employee's relationship with Employer or any of
its executives or employees, including but not limited to any promises,
warranties or representations regarding future employment, compensation,
commissions and benefits, any entitlement to stock, stock rights, Stock Plan
benefits, profits, debt and equity interests in Employer or any of its
affiliated companies or regarding the termination of Employee's employment.
In this regard, Employee agrees that no promises, warranties or
representations shall be deemed to be made in the future unless they are set
forth in writing and assigned by an authorized representative of Employer.
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(f) AMENDMENTS. This Agreement may be modified only by a
written instrument executed by the parties that is designated as an amendment
to this Agreement.
(g) COUNTERPARTS. This Agreement is being executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(h) SEVERABILITY AND NON-WAIVER. Any provision of this
Agreement (or portion thereof) which is deemed invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction and subject
to this Section, be ineffective to the extent of such invalidity, illegality
or unenforceability, without affecting in any way the remaining provisions
thereof in such jurisdiction or rendering that or any other provisions of
this Agreement invalid, illegal, or unenforceable in any other jurisdiction.
If any covenant should be deemed invalid, illegal or unenforceable because
its scope is considered excessive, such covenant shall be modified so that
the scope of the covenant is reduced only to the minimum extent necessary to
render the modified covenant valid, legal and enforceable. No waiver of any
provision or violation of this Agreement by Employer shall be implied by
Employer's forbearance or failure to take action.
(i) ATTORNEY FEES. In the event that any action or
proceeding is commenced by any party hereto for the purpose of enforcing any
provision of this Agreement, the parties to such action, proceeding or
arbitration may receive as part of any award, settlement, judgment, decision
or other resolution of such action or proceeding, whether or not reduced to a
court judgement, their costs and reasonable attorneys fees as determined by
the person or body making such award, settlement, judgment, decision or
resolution.
(j) VOLUNTARY AND KNOWLEDGEABLE ACT. EMPLOYEE REPRESENTS
AND WARRANTS THAT EMPLOYEE HAS READ AND UNDERSTANDS EACH AND EVERY PROVISION
OF THIS AGREEMENT AND HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYER:
TeleTech Holdings, Inc.
By: /s/ Steven B. Coburn
---------------------------------
Steven B. Coburn
Chief Financial Officer
EMPLOYEE:
/s/ Vincent Cipolla
------------------------------------
Vincent Cipolla
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SCHEDULE B
EMPLOYEE'S PRIOR OBLIGATIONS
Employee has the following obligation(s) of confidence or other
commitments to previous employer(s) which restrict his field of activities
and/or conflict with the confidentiality and/or non-competition provisions of
the attached agreement:
None.
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