EXHIBIT 10.21
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into as of
August 15, 1996 by and between TeleTech Service Corporation, Inc., a Delaware
corporation (collectively with its subsidiaries, "TeleTech"), and Xxxxxxx
Xxxxxxxxxx & Company, Inc., a Delaware corporation ("RWCO"). Xxxxxxx
Xxxxxxxxxx, and employee of RWCO ("Consultant"), has executed this Agreement
for purposes of Section 5 hereof.
W I T N E S S E T H :
WHEREAS, TeleTech is engaged in the business of, among other things,
providing customer care and support services, on a fully outsourced basis or
under facilities management agreements, using integrated voice and data
communications technology, which services include, without limitation,
technical help desk support, pre- and post-sale customer education,
activating product or service upgrades and responding to customer requests
for information (together with any other business in which TeleTech may
engage during the term of this Agreement, the "Business"); and
WHEREAS, TeleTech desires to retain the services of Consultant to
render certain financial and merger and acquisition advisory services, as
more fully described and subject to the terms and conditions set forth herein.
NOW THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. SCOPE OF SERVICES.
(a) TeleTech hereby retains RWCO to provide, and RWCO hereby
agrees to cause Consultant to render to TeleTech, certain advisory
services as requested by TeleTech with respect to (i) acquisitions and
dispositions involving TeleTech, which may include, without limitation,
advice regarding transaction structuring, strategy and negotiation, (ii)
strategic planning and advice regarding general management matters, and
(iii) the identification, hiring, retention and compensation of key
executives and members of the Board of Directors, and such other matters
as TeleTech may reasonably specify from time-to-time (collectively, the
"Services"). RWCO acknowledges that TeleTech has entered into this
contract in order to retain the personal services of Consultant and no
other officer, employee or agent of RWCO shall perform the Services
without the prior written consent of TeleTech.
(b) RWCO hereby agrees to cause Consultant to devote such time
and effort as may be necessary to adequately and properly perform the
Services. TeleTech acknowledges that no more than fifty-percent (50%) of
Consultant's total working time shall be devoted to performance of the
Services ("Maximum Time"). TeleTech
acknowledges that, during the term of this Agreement, Consultant may be
retained to perform services for persons or entities other than TeleTech
and that the parties intend that this Agreement shall not interfere with
Consultant's ability to perform such other services; provided that such
services do not involve performance of services for or on behalf of
persons or entities whose primary business (or those of its
subsidiaries) is directly or substantially in competition with the
Business (a "Competitor"). To the extent, if any, that a conflict or
question arises regarding Consultant's ability fully to provide the
Services due to constraints arising out of Consultant's rendering of
services to any other person or entity that is not a Competitor, the
parties shall negotiate in good faith to determine a basis on which
Consultant shall perform the Services without unreasonably interfering
with Consultant's obligation to render services to any such other person
or entity.
2. COMPENSATION.
(a) In consideration of the performance of the Services by
Consultant hereunder, TeleTech shall pay to RWCO a monthly consulting
fee of ten thousand dollars ($10,000), payable on the first day of each
month during the term of this Agreement for Services to be performed by
Consultant during such month (the "Fee"). The Fee shall not be decreased
in the event that the Services TeleTech requests Consultant to perform
require Consultant to devote less than the Maximum Time to complete.
(b) In addition to the Fee, upon execution of this Agreement
TeleTech shall grant to Consultant a Non-qualified Stock Option to
purchase up to 55,000 shares of TeleTech's common stock, par value $.01
per share, at an exercise price of $18.00 per share (the "Option"). The
Option shall be subject to the terms and conditions of the TeleTech
Holdings, Inc. Stock Plan, as Amended and Restated and as may hereafter
be amended (the "Stock Plan"), and the Non-qualified Stock Option
Agreement, in the form attached hereto as EXHIBIT A (the "Option
Agreement"), to be executed concurrently with the execution of this
Agreement.
3. EXPENSES.
(a) During the term of this Agreement and subject to SEction
3(b), TeleTech shall reimburse RWCO for reasonable and necessary
out-of-pocket expenses actually incurred by Consultant; provided, that
Consultant adheres to TeleTech's policies regarding expense reimbursement
applicable to its executives and key employees and as are directly related
to Consultant's rendering of the Services. RWCO shall provide appropriate
documentation of all reimbursable expenses in accordance with TeleTech's
procedures and reporting standards imposed upon TeleTech by the Internal
Revenue Code of 1986, as amended. Expenses incurred by Consultant for
which appropriate documentation has not been provided or that are
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contrary to applicable TeleTech policies regarding expense reimbursement
shall be reimbursed, if at all, only at the sole discretion of TeleTech.
(b) RWCO shall be solely responsible for all costs and
expenses associated with or relating to office expenses (including
without limitation rent and utilities), support services and personnel
costs, personal income taxes, local, state and federal taxes, and any
other costs and expenses of whatever nature or sort (with the exception
of expenses expressly assumed by TeleTech in Section 3(a) of this
Agreement) incurred by RWCO and/or Consultant in connection with
performance of the Services hereunder.
4. TERM AND TERMINATION. This Agreement shall commence on September 1,
1996 and shall continue until August 31, 1997, unless earlier terminated by
either party upon 30 days' prior written notice to the other party (a
"Voluntary Termination"). Notwithstanding the foregoing, this Agreement may
be terminated immediately by TeleTech (a) upon delivery of notice by TeleTech
that Consultant has breached or has threatened to breach the provisions of
Section 5 hereof, (b) upon delivery of notice by TeleTech that Consultant is
providing services to a Competitor, or (c) for "Cause," as defined in the
Option Agreement (any of the foregoing, an "Involuntary Termination"). Upon
termination of this Agreement, RWCO shall be entitled to receive (i) any Fees
due and owing by TeleTech up to the termination date, in the event of a
Voluntary Termination, and (ii) any expenses incurred prior to the
termination date that are reimbursable hereunder.
5. CONFIDENTIAL INFORMATION.
(a) Consultant recognizes that he will occupy a position of trust
with respect to business and technical information of a secret or
confidential nature which is the property of TeleTech or any of its
affiliates and which will be imparted to him from time to time in the
course of the performance of the Services hereunder. Consultant
acknowledges and agrees that any and all Confidential Information (as
defined herein) learned or obtained by Consultant during the course of
the performance of the services or otherwise, is the property of TeleTech
and its affiliates.
(b) Consultant shall not use or disclose, directly or
indirectly, any Confidential Information to any person, except that
Consultant may use and disclose to authorized personnel or agents of
TeleTech or its affiliates such Confidential Information as is necessary
for Consultant's proper performance of the Services hereunder. The
provisions of this Section 5 shall survive termination of this Agreement
for any reason.
(c) Consultant shall return to TeleTech, promptly upon
termination of this Agreement or otherwise upon the request of TeleTech,
any and all copies of any documentation or materials
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containing any Confidential Information. All information, know-how and
other things devised or created by Consultant during the Term, solely or
jointly with others, that falls within the definition of Confidential
Information shall belong solely to TeleTech, and Consultant agrees, upon
request of TeleTech, to assign the same to TeleTech and/or to assist
TeleTech in obtaining copyright, trademark and/or trade name protection
thereon.
(d) "Confidential Information" means all information, data,
know-how, systems and procedures of a technical or commercial nature
owned by or relating to TeleTech 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, 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 TeleTech's and its
affiliates' actual and prospective employees, clients, suppliers and
vendors; patents and patent applications, inventions and improvements
(whether patentable or not), development projects, computer software and
related documentation and materials, designs, practices, recipes,
processes, methods, know-how, techniques and other facts relating to the
business of TeleTech and its affiliates; and all other trade secrets and
information of a confidential and proprietary nature.
(e) Cosultant hereby acknowledges that each subsidiary and
affiliate of TeleTech is expressly made a third party beneficiary hereto
for purposes of protecting its rights and interests hereunder.
(f) RWCO and Consultant acknowledge that damages would be an
inadequate remedy for Consultant's breach of any of the provisions of
this Section 5 and that breach of any of such provision will result in
immeasurable and irreparable harm to TeleTech. Therefore, in addition to
any other remedy to which TeleTech may be entitled by reason of
Consultant's breach or threatened breach of any such provision, TeleTech
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 Consultant
from committing or continuing any breach of this Section 5, 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 Consultant or RWCO against
TeleTech, whether arising from this Agreement or otherwise, shall in no
way constitute a defense to the enforcement of the provisions of this
Section 5.
6. NON-COMPETITION.
(a) TeleTech and Consultant recognize that Consultant recognize
that Consultant has been retained to occupy a position equivalent to
that occupied
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by the professional, management and/or executive staff of TeleTech and
that his duties may include the formulation and/or execution of
management policy. Consultant, for and in consideration of retention by
TeleTech in such a position and being permitted access to Confidential
Information, agrees that so long as this Agreement is in effect and for
a period of 24 months thereafter, Consultant shall not (i) work for,
(ii) assist or perform consulting services for, (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 or substantially
competitive with the Business in the United States, Australia, New Zealand,
the United Kingdom or in any other market in which TeleTech is conducting
business at the time this Agreement is terminated.
(b) Notwithstanding the foregoing, nothing herein, in the
Option Agreement or in the TeleTech Holdings, Inc. Directors Option
Agreement dated as of January 1, 1996 between Consultant and TeleTech
(collectively, the "Other Agreements") shall prohibit Consultant from
(i) 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, or (ii) (A) providing consulting services
relative to the acquisition of, or the making of an investment in,
Cellarmaster Wines Pty, Ltd. ("Cellarmaster"), (B) making an investment,
directly or indirectly, in Cellarmaster or (C) subject to the prior
approval of the President of TeleTech (which approval will not be
unreasonably withheld), having any other involvement with Cellarmaster.
(c) Upon the termination of this Agreement and for 24 months
thereafter, Consultant shall promptly notify TeleTech of each employment
or agency relationship entered into by Consultant, and each corporation,
proprietorship or other entity formed or used by Consultant, the
business of which is directly or indirectly, similar to or in
competition with the Business.
(d) Consultant agrees that the restrictions contained in this
Section 6 are reasonable as to time and geographic scope because of the
nature of the Business and Consultant agrees, in particular, that the
geographic scope of this restriction is reasonable because companies in
the teleservicing and outsourced customer service industry compete on a
nationwide basis. Consultant acknowledges that TeleTech is in direct
competition with all other companies that provide teleservicing and
other customer services on an outsourced basis throughout the United
States, Australia, New Zealand, the United Kingdom and other markets in
which TeleTech may be conducting business at the time Consultant's
relationship with TeleTech is terminated and, because of the nature
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of the Business, Consultant agrees that the covenants contained in this
Section 6 cannot reasonably be limited to any smaller geographic area.
7. NON-SOLICITATION AND NON-INTERFERENCE.
(a) Consultant acknowledges that TeleTech has invested substantial
time and effort in assembling its present staff. Consultant agrees that so
long as this Agreement is in effect and for a period of 24 months
thereafter, he shall not (irrespective of the time, manner or cause of
termination of this Agreement), 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 TeleTech's
employees.
(b) Consultant acknowledges that all clients of TeleTech that
Consultant has serviced or had contact with, or hereafter during the
term of this Agreement will service or have contact with, and all
prospective clients of TeleTech from whom Consultant has solicited or
may solicit business during the term of this Agreement, shall be clients
solely of TeleTech. Consultant agrees that, so long as this Agreement is
in effect and for a period of 24 months thereafter (irrespective of the
time, manner or cause of termination of this Agreement), he shall not
either directly or indirectly
(i) solicit business, as to products or services competitive
with the Business of TeleTech, from any of TeleTech's customers
with whom Consultant had contact during his relationship with
TeleTech; or
(ii) interfere with any relationship between TeleTech and
any of its suppliers, clients or employees, or influence or
attempt to influence any of TeleTech's clients not to do
business with TeleTech.
(c) Consultant agrees that the restrictions contained in this
Section 7 are reasonable as to time and geographic scope because of the
nature of the Business and Consultant agrees, in particular, that the
geographic scope of this restriction is reasonable because companies in
the teleservicing and outsourced customer service industry compete on a
nationwide basis. Consultant acknowledges that TeleTech is in direct
competition with all other companies that provide teleservicing and other
customer services on an outsourced basis throughout the United States,
Australia, New Zealand, the United Kingdom and other markets in which
TeleTech may be conducting business at the time Consultant's relationship
with TeleTech is terminated and, because of the nature of the Business,
Consultant expressly agrees that the covenants contained in this Section 7
cannot reasonably be limited to any smaller geographic area.
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8. INDEMNIFICATION. TeleTech agrees to indemnify and hold harmless
Consultant, RWCO and its stockholders, directors, officers, employees and
agents (the "Indemnified Parties") with respect to any claims or liabilities
(including reasonable costs and expenses incurred in defending such claims or
liabilities, including without limitation reasonable attorney's fees) that
may be asserted or imposed against any Indemnified Party arising out of,
relating to or in connection with the performance of the Services hereunder,
except for any such claims that may be asserted or liabilities that may be
imposed by virtue of any gross negligence or willful misconduct of any
Indemnified Party.
9. INDEPENDENT CONTRACTOR. Consultant shall, at all times, be an
independent contractor and, accordingly, under no circumstances shall
Consultant have or claim to have any authority or power of decision in any
activity on behalf of TeleTech. Notwithstanding any other provision of this
Agreement, it is specifically understood that TeleTech shall not, with
respect to the Services to be rendered hereunder, exercise any control over
Consultant that would be contrary to TeleTech's relationship with Consultant
as an independent contractor.
10. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Delaware, without
regard to its principals regarding conflicts of law.
11. JURISDICTION; SERVICE OF PROCESS. Each of the parties hereto agrees
that all actions or proceedings initiated by any party hereto and arising
directly or indirectly out of this Agreement which are brought to judicial
proceedings shall be litigated in the United States District Court covering
Denver, Colorado or, in the event such court cannot or will not exercise
jurisdiction, in the state courts of the State of Colorado sitting in Denver,
Colorado. Each of the parties hereto expressly submits to the jurisdiction of
such courts and waives any claim that any such court is an inconvenient forum
or an improper forum based on lack of venue or jurisdiction.
12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by any
party without the prior written consent of all other parties. This Agreement
shall be binding upon and shall inure to the benefit of (a) the heirs,
executors and legal representatives of Consultant upon Consultant's death and
(b) any successor of TeleTech or RWCO and any such successor or permitted
assign shall be deemed substituted for TeleTech or RWCO, as the case may be,
under the terms hereof for all purposes.
13. INTEGRATION. This Agreement and the Other Agreements constitute the
entire agreement between the parties with respect to all matters, including
but not limited to the retention of RWCO and Consultant, and RWCO's and
Consultant's compensation, commissions
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and benefits any entitlements to stock or stock rights in TeleTech. This
Agreement and the Other Agreements, supersede all prior oral or written
understandings and agreements relating to its subject matter and all other
business relationships between TeleTech and/or its affiliated companies and
RWCO and Consultant.
14. NO MODIFICATION. This Agreement may be modified only by a written
instrument executed by the parties, which is designated as an amendment to
this Agreement.
15. COUNTERPARTS. This Agreement may be 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.
16. SEVERABILITY. Any provision of this Agreement (or any portion
thereof) that is deemed invalid, illegal or unenforceable in any jurisdiction
shall, as to that jurisdiction and subject to this paragraph 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TELETECH SERVICE CORPORATION, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President
XXXXXXX XXXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Title: President
/s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
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