Consulting Agreement - Aspect Communications Corp. and Barry M. Ariko
CONSULTING AGREEMENT
THIS AGREEMENT is made effective as of November 29, 2001 by and between
Barry M. Ariko, an individual ("Consultant"), and Aspect Communications, Inc., a
company based in San Jose, California (the "Company").
Consultant has been involved in fields of particular interest to the
Company and is by education and/or experience qualified and skilled with respect
to the Consulting functions described herein. The Company wishes to retain Mr.
Ariko as a Consultant to the Company, and Mr. Ariko desires to perform such
services. Accordingly, the parties agree as follows:
1. Consulting Services. Consultant will serve as an advisor to the Company
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and will provide information, counsel and assistance as requested by the Company
in furtherance of the Company's desire to move the sales force from its current
culture, models, policy and procedures to one that is better targeted towards
growing revenue for the Company's full suite of products in today's market (see
Attachment A - "Schedule and Objectives for Consulting on Development of Aspect
Sales), and will perform such other services as are agreed upon from time to
time by Consultant and the Company's senior management (collectively, the
"Consulting Services"), specifically either Ms. Beatrice Infanti, CEO or Mr. Rod
Butters, COO. Consultant agrees that some Consulting Services may be sought by
the Company over the telephone, in person at Company's offices, or through
written or email correspondence. This consulting engagement terminates on June
30, 2002.
2. Consulting Fee. The Consultant agrees to perform the scope of
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Consulting Services described in Attachment A for a minimum fee of $30,000 which
will be calculated as follows: in connection with the services provided under
this Agreement, and effective upon the Company's approval hereof, Consultant
shall be paid at the rate of $3,000/day (not to exceed eight (8) hours/day) for
his services ($2,000/day for meetings of four (4) hours or less), $500/hour for
telephone consulting (minimum charge of $125) and time spent preparing for
meetings or responding to email requests. Meetings that require the Consultant
to travel overnight will be billed as a multiple day engagement.
3. Payment and Reimbursement of Expenses. (i) Company shall pay the
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Consultant monthly and within five (5) days of Company receiving an invoice from
the consultant; (ii) Company shall reimburse Consultant for Consultant's
reasonable out-of-pocket expenses incurred in connection with any meetings of
the Company's Advisors (including first class airfare), and (iii) for other
pre-approved out-of-pocket expenses directly related to services rendered by
Consultant under this Agreement. Reimbursement shall be subject to Consultant
promptly providing to the Company an itemized expense statement and receipts
supporting all such reimbursable expenses. Reimbursement shall be made by the
Company according to its usual and customary accounting and payment procedures.
4. Confidentiality.
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(a) Consultant acknowledges that, during the course of performing the
Consulting Services, the Company may be disclosing certain nonpublic information
and materials concerning its business to Consultant, including but not limited
to information regarding its projects, products, technology and know-how,
industry and competitor analyses, services, potential customers, personnel,
business plans, finances and other commercially valuable information
(collectively "Confidential Information"). All nonpublic information disclosed
to Consultant in connection with the Consulting Services will be presumed to be
Confidential Information and shall be treated as such.
(b) Consultant agrees that the Confidential Information will be used
by Consultant only in connection with Consulting Services and will not be used
in any way that is detrimental to the Company.
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(c) Consultant agrees not to disclose, directly or indirectly, the
Confidential Information to any third person or entity, other than
representatives or agents of the Company. Consultant will treat all such
Confidential Information as confidential and proprietary property of the
Company.
(d) The term "Confidential Information" does not include information
that (i) is or becomes generally available to the public other than by
disclosure in violation of this Agreement, (ii) was within Consultant's
possession prior to being furnished by the Company provided that the source of
such information is not and was not bound at the time of delivery by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Company, (iii) becomes available to
Consultant on a nonconfidential basis from a source other than the Company
provided that such source is not and was not bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company with respect to such information, or (iv) was
independently developed by Consultant without reference to the Confidential
Information.
(e) Consultant may disclose any Confidential Information that is
required to be disclosed by law, government regulation or court order. If such
disclosure is required Consultant will give the Company reasonable advance
notice so that the Company may seek protective order or take other action
reasonable in light of the circumstances.
(f) Consultant shall continue to be bound by the terms of the
confidentiality provisions contained in this Section 4 for a period of two (2)
years after the termination of the Consulting Services by Consultant.
5. Other Matters. Consultant understands that the Company is not seeking
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to obtain any information that is proprietary to any prior or current business
relationship of Consultant. Consultant shall not, in performing services for the
Company, make use of any such proprietary information of third parties.
6. Assignment: Further Assurances. To the extent necessary for the
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Company's complete ownership of all property rights embodied in the Confidential
Information (i.e. to the extent the Confidential Information cannot legally be
considered "work made for hire" and with respect to patent, trade secret and
other rights), Consultant hereby sells, assigns, grants, transfers, and delivers
to the Company, and its successors and assigns, all Consultant's right, title
and interest in and to the Confidential Information, and the right to secure
patent rights, copyrights, and other intellectual property rights throughout the
world, and to have and to hold such rights in perpetuity. Consultant further
waives for himself/herself and his/her successors in interest, any right they
may have now or in the future to terminate or waive this assignment. Consultant
agrees to assist and cooperate with the Company in obtaining, maintaining, and
enforcing any U.S. or foreign patents, copyrights, trademarks, service marks,
trade secrets or other intellectual property rights relating in any manner to
the Consulting Services, including, but not limited to, executing applications
therefor and other documents relating thereto, and rendering all such assistance
and testimony as may be reasonably necessary to protect the rights of the
Company or its designee. All such filings and enforcement activities shall be
conducted at the Company's expense.
7. Relationship of the Parties: Terminable At Will. In the performance of
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all services under this Agreement, Consultant shall be an independent contractor
and not an employee, agent, partner, joint venturer or co-venturer of the
Company. Consultant shall have no right to bind the Company, transact any
business in the name of the Company or on its behalf in any matter, or make any
promises or representations on behalf of the Company. As an independent
contractor, Consultant shall be solely responsible for all income, self-
employment, social security, medicare, unemployment or other federal or state
withholding or taxes applicable to compensation paid to Consultant by the
Company under this Agreement; provided, however, that the Company shall have a
right to make any and all tax withholdings reasonably deemed necessary or
advisable by the Company. This Agreement and the relationship of the parties are
terminable at will by either party, at any
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time, with or without cause. If terminated by the Consultant, the minimum fee
provisions of the contract is thereby waived.
8. No Conflict: Valid and Binding. Consultant represents that neither the
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execution of this Agreement nor the performance of Consultant's obligations
under this Agreement will result in a violation or breach of any other agreement
by which Consultant is bound. The Company represents that this Agreement has
been duly authorized and executed and is a valid and legally binding obligation
of the Company, subject to no conflicting agreements.
9. Indemnification of Consultant. The Company will, to the extent and in
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the manner permitted by applicable law, indemnify Consultant against expenses,
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding, arising by reason of the fact that
Consultant is or was providing Consulting Services to the Company; provided,
however, that Consultant shall have no right to indemnification on account of
(i) acts or omissions of Consultant constituting intentional misconduct or a
knowing violation of law; (ii) any transaction with respect to which Consultant
personally received a benefit in money, property or services to which Consultant
was not legally entitled; or (iii) any activities by Consultant that constitute
a breach or default under any agreement between the Company and Consultant.
10. Assignment. This Agreement may not be assigned.
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11. Merger; Entire Agreement; Waiver; Severability. This Agreement, except
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as supplemented or modified in writing between the parties, constitutes the
entire agreement between the parties with respect to the subject matter hereof.
No waiver of breach shall constitute a subsequent waiver of any subsequent
breach, and if any provision of this Agreement be held invalid, the remaining
provisions shall remain enforceable.
12. Governing Law. This Agreement shall be governed by, construed and
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enforced in accordance with the laws of the State of California (without giving
effect to any choice or conflict of laws provision or rule).
"CONSULTANT" /s/ Barry M. Ariko an individual
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Barry M. Ariko
"COMPANY" By: /s/ Rod Butters
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Name: Rod Butters
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Its: Group President
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