Employment Agreement - Aspect Telecommunications Corp. and Kathleen M. Cruz
[ASPECT LETTERHEAD]
March 1, 1999
Kathleen M. Cruz
Sr. Vice President, Information Technology &
Chief Information Officer
Dear Kathy:
This letter agreement (the "Agreement") is to confirm the terms of your
ongoing employment with Aspect Telecommunications Corporation (the "Company").
1. This Agreement will commence on the date hereof and continue for a term
of two (2) years (the "Original Term"), unless extended for one or more
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additional one-year terms upon mutual written agreement of the parties or unless
terminated pursuant to the terms described herein. In the event that the
Company has entered into discussions with a third party regarding a Change of
Control (as defined below) transaction and such Change of Control discussions
are ongoing at the end of the Original Term, this Agreement shall be
automatically extended pending consummation of such transaction.
2. You are employed as Sr. Vice President, Information Technology & Chief
Information Officer of the Company, and as such report to the Company's Chief
Executive Officer. Your job duties and responsibilities are described on
Exhibit A attached hereto. You agree to the best of your ability and experience
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that you will, to the reasonable satisfaction of the Company and its Board of
Directors (the "Board"), at all times loyally and conscientiously perform all of
the duties and obligations required of you pursuant to the terms of this
Agreement. You will comply with and be bound by the Company's operating
policies, procedures and practices from time to time in effect during the term
of your employment.
3. You acknowledge that your employment is and will continue to be at-
will, as defined under applicable law, and that your employment with the Company
may be terminated by either party at any time for any or no reason. If your
employment terminates for any reason, you will not be entitled to any payments,
benefits, damages, award or compensation other than as provided in this
Agreement. The rights and duties created by this paragraph may not be modified
in any way except by a written agreement executed by the Chief Executive Officer
on behalf of the Company.
4. If your employment is involuntarily terminated other than for cause (as
defined below) or terminated by you following a constructive termination (as
defined below) at any time within twelve (12) months of a Change of Control (as
defined below), you will be entitled to receive payment of severance benefits
equal to your regular monthly salary (subject to any applicable tax withholding)
until the earlier of (i) twelve (12) months following the termination date or
(ii) the date on which you commence comparable employment (as defined below)
with
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another employer (the "Severance Period"). Such payments will be made
ratably over the Severance Period according to the Company's standard payroll
schedule. Health insurance benefits with the same coverage provided to you
prior to the termination (e.g. medical, dental, optical, mental health) and in
all other respects significantly comparable to those in place immediately prior
to the termination will be provided at the Company's cost over the Severance
Period. In addition, and except as otherwise determined below, each stock
option and share of restricted stock you hold that is not otherwise fully
exercisable or vested (released from the Company's repurchase option) as of the
termination date shall become immediately exercisable or vested in full as of
such date.
5. In the event it is determined by the Board, upon consultation with
Company management and the Company's independent auditors, that the enforcement
of paragraph 4 of this Agreement, which allows for the acceleration of vesting
of option shares and restricted stock upon an involuntary or constructive
termination following a Change of Control, would preclude accounting for any
proposed business combination of the Company involving a Change of Control as a
pooling of interests, and the Board otherwise desires to approve such a proposed
business transaction which requires as a condition to the closing of such
transaction that it be accounted for as a pooling of interests, then such
paragraph shall be null and void. For purposes of this paragraph, the Board's
determination shall require the unanimous approval of the non-employee Board
members.
6. In the event that the severance and other benefits provided to you by
this Agreement constitute "parachute payments" within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code") and, but for
this paragraph, would be subject to the excise tax imposed by Section 4999 of
the Code, the Company shall reduce the aggregate amount of such payments and
benefits such that the present value thereof (as determined under the Code and
the applicable regulations) is equal to 2.99 times your "base amount" as defined
in Section 280G(b)(3) of the Code. The payment of severance and other benefits
provided for in this Agreement shall be subject to all applicable income and
employment tax rules and regulations.
7. For purposes of this Agreement, the following definitions will apply:
(a) "Cause" for your termination will exist if the Company terminates
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your employment for any of the following reasons: (i) you willfully fail
substantially to perform your duties hereunder (other than any such failure due
to your physical or mental illness), and such willful failure is not remedied
within 10 business days after written notice from the Company's Chief Executive
Officer, which written notice shall state that failure to remedy such conduct
may result in an involuntary termination for cause; (ii) you engage in willful
and serious misconduct that has caused or is reasonably expected to result in
material injury to the Company or any of its affiliates, (iii) you are convicted
of or enter a plea of guilty or nolo contender to a crime that constitutes a
felony, or (iv) you willfully breach any of your obligations hereunder or under
any other written agreement or covenant with the Company or any of its
affiliates, including, but not limited to, the Confidentiality Agreement, and
such willful breach is not remedied within 10 business days after written notice
from the Company's Chief Executive Officer, which written
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notice shall state that failure to remedy such conduct may result in an
involuntary termination for cause.
(b) "Change of Control" will mean the occurrence of any of the
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following events: (i) an acquisition of the Company by another entity by means
of any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation but excluding any merger
effected exclusively for the purpose of changing the domicile of the Company) or
(ii) a sale of all or substantially all of the assets of the Company
(collectively, a "Merger"), so long as in either case the Company's shareholders
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of record immediately prior to such Merger will, immediately after such Merger,
hold less than 50% of the voting power of the surviving or acquiring entity.
(c) "Comparable Employment" will mean employment or consulting that
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provides compensation, benefits and duties that, in the sole discretion of the
Board, are deemed to be generally comparable to those pertaining to your
position with the Company at the time of termination of your employment.
(d) "Constructive Termination" will be deemed to occur if (A) (i)
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your duties and responsibilities as Sr. Vice President, Information Technology &
Chief Information Officer of the company are materially diminished without your
prior written consent; and/or (ii) any reduction in the total value of your base
compensation and benefits occurs; and/or (iii) your new business office location
is more than 50 miles or greater than current commute (whichever is greater)
from your current business office location. Construction termination does not
occur when your reduction in duties, position or responsibilities solely results
by virtue of the company being acquired and made a part of a larger entity; and
(B) within sixty (60) days immediately following such material change in duties
or reduction or refusal to relocate you elect to terminate your employment
voluntarily.
8. You have signed a Confidential Information and Invention Assignment
Agreement (the "Confidentiality Agreement") substantially in the form attached
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hereto as Exhibit B. You hereby represent and warrant to the Company that you
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have complied with all obligations under the Confidentiality Agreement and agree
to continue to abide by the terms of the Confidentiality Agreement and further
agree that the provisions of the Confidentiality Agreement will survive any
termination of this Agreement or of your employment relationship with the
Company.
9. You represent that your performance of all the terms of this Agreement
will not breach any other agreement to which you are a party. You have not, and
will not during the term of this Agreement, enter into any oral or written
agreement in conflict with any of the provisions of this Agreement.
10. Any successor to the Company (whether direct or indirect and whether
by purchase, lease, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company's business and/or assets will assume the
obligations under this Agreement and agrees expressly to perform the obligations
under this Agreement in the same manner and to the same
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extent as the Company would be required to perform such obligations in the
absence of a succession. The terms of this Agreement and all of your rights
hereunder will inure to the benefit of, and be enforceable by, your personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
11. This Agreement, including any Exhibits hereto, constitutes the sole
agreement of the parties and supersedes all oral negotiations and prior writings
with respect to the subject matter hereof.
12. Any term of this Agreement may be amended or waived only with the
written consent of the parties.
13. Any notice required or permitted by this Agreement will be in writing
and will be deemed sufficient upon receipt, when delivered personally or by a
nationally-recognized delivery service (such as Federal Express or UPS), or 48
hours after being deposited in the U.S. mail as certified or registered mail
with postage prepaid, if such notice is addressed to the party to be notified at
such party's address as set forth below or as subsequently modified by written
notice.
14. The validity, interpretation, construction and performance of this
Agreement will be governed by the laws of the State of California, without
giving effect to the principles of conflict of laws.
15. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision will be excluded from this Agreement, (ii) the balance of the
Agreement will be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement will be enforceable in accordance with its terms.
16. You and the Company agree to attempt to settle any disputes arising in
connection with this Agreement through good faith consultation. In the event
that we are not able to resolve any such disputes within fifteen (15) days after
notification in writing to the other, we agree that any dispute or claim arising
out of or in connection with this Agreement will be finally settled by binding
arbitration in Santa Clara County, California in accordance with the rules of
the American Arbitration Association by one arbitrator appointed in accordance
with said rules. The arbitrator will apply California law, without reference to
rules of conflicts of law or rules of statutory arbitration, to the resolution
of any dispute. Judgment on the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. Notwithstanding the foregoing, the
parties may apply to any court of competent jurisdiction for preliminary or
interim equitable relief, or to compel arbitration in accordance with this
paragraph, without breach of this arbitration provision. The Company agrees to
pay, on a monthly basis, the reasonable attorney fees, costs and expenses (as
determined by the arbitrator) incurred by you in good faith in connection with
the arbitration, regardless of the outcome. You agree that punitive damages
will not be awarded. This paragraph will not apply to the Confidentiality
Agreement.
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17. You acknowledge that, in executing this Agreement, you have had the
opportunity to seek the advice of independent legal counsel, and have read and
understood all of the terms and provisions of this Agreement.
Please indicate your agreement with the above terms by signing below.
Sincerely,
Aspect Telecommunications Corporation
/s/ James R. Carreker
By:____________________________
Title: Chairman, President &
Chief Executive Officer
My agreement with the above terms is signified by my signature below.
/s/ Kathleen M. Cruz
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Kathleen M. Cruz
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EXHIBIT A
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DESCRIPTION OF JOB DUTIES
AND RESPONSIBILITIES
Senior Vice President and Chief Information Officer- Kathleen M. Cruz
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This position is responsible for directing the organization's internal
information systems function and data processing functions, including all
systems design, systems programming, application programming and networks. The
position oversees the acquisition and maintenance of all information processing
equipment.
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EXHIBIT B
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CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
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ASPECT TELECOMMUNICATIONS CORPORATION
EMPLOYEE AGREEMENT
In exchange for my becoming employed (or my employment being continued) by
Aspect Telecommunications Corporation, or its subsidiaries, affiliates, or
successors (hereinafter referred to collectively as the "Company"), I hereby
agree as follows:
EMPLOYMENT I will perform for the Company such duties as may be designated
by the Company from time to time. During my period of employment
by the Company, I will devote my best efforts to the interests
of the Company and will not engage in other employment with any
Aspect competitor customer or supplier without the prior consent
of the Company. I will not accept a position with any other
company if the time demands of the position will impair my
ability to fulfill my obligations to the Company.
DEFINITIONS As used in this agreement, the term "inventions" means designs,
trademarks, discoveries, formulae, processes, manufacturing
techniques, trade secrets, inventions, improvements, ideas,
original works of authorship or copyrightable works, including
all rights to obtain, register, perfect and enforce these
proprietary interests.
As used in this Agreement, the term "Confidential Information"
means information pertaining to any aspects of the Company's
business which is either information not known by actual or
potential competitors of the Company or is proprietary
information of the Company or its customers or suppliers,
whether of a technical nature or otherwise.
ASSIGNMENT OF Without further compensation, I hereby agree promptly to
INVENTIONS disclose to the Company, and I hereby assign and agree to assign
to the Company or its designee, my entire right, title, and
interest in and to all Inventions (a) which pertain to any line
of business activity of the Company, (b) which are aided by the
use of time, material or facilities of the Company, whether or
not during working hours, or (c) which relate to any of my work
during the period of my employment with the Company, whether or
not during normal working hours. No rights are hereby conveyed
in Inventions, if any, made by me prior to my employment with
the Company which are identified on the back of this Agreement
or on in a sheet attached to and made a part of this Agreement,
if any (which attachment contains no confidential information).
I acknowledge that all original works of authorship which are
made by me (solely or jointly with others) within the scope of
my employment and which are protectable by copyright are "works
made for hire," as that term is defined in the United States
Copyright Act as in effect as of this date.
I agree to perform, during and after my employment, all acts
deemed necessary or desirable by the Company to permit and
assist it, at its expense, in obtaining and enforcing the full
benefits, enjoyment, rights and title throughout the world in
the Inventions hereby assigned to the Company. Such acts may
include, but are not limited to, execution of documents and
assistance or cooperation in legal proceedings.
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This Agreement does not apply to an Invention, the assignment of
which to the Company would violate applicable law, including an
Invention which qualified fully under Section 2870 of the
California Labor Code. I agree to disclose in confidence to the
Company all inventions made by me to permit a determination as
to whether or not the Inventions should be the property of the
Company.
CONFIDENTIAL I agree to hold in confidence and not directly or indirectly to
NONDISCLOSURE use or disclose, either during or after termination of my
employment with the Company, any Confidential Information I
obtain or create during the period of my employment, whether or
not during working hours, except to the extent authorized by the
Company, until such Confidential Information becomes generally
known. I agree not to make copies of such Confidential
Information except as authorized by the company. Upon
termination of my employment or upon an earlier request of the
Company I will return or deliver to the Company all tangible
forms of such Confidential Information in my possession or
control, including but not limited to drawings, specifications,
documents, records, devices, models or any other material and
copies or reproductions thereof.
I represent that my performance of all the terms of this
Agreement and as an employee of the Company does not and will
not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by me in confidence or
in trust prior to my employment with the Company, and I will not
disclose to the Company, or induce the Company to use, any
confidential or proprietary information or material belonging to
any previous employer or others.
NO CONFLICT I agree not to enter into any agreement either written or oral
in conflict with the provisions of this Agreement. I certify
that, to the best of my information and belief, I am not a party
to any other agreement which will interfere with my full
compliance with this Agreement.
SURVIVABILITY This Agreement (a) shall survive my employment by the Company,
(b) does not in any way restrict my right or the right of the
Company to terminate my employment, (c) inures to the benefit of
successors and assigns of the Company, and (d) is binding upon
my heirs and legal representatives.
COMPLIANCE I certify and acknowledge that I have carefully read all of the
provisions of this Agreement and that I understand and will
fully and faithfully comply with such provisions.
ASPECT TELECOMMUNICATIONS EMPLOYEE
CORPORATION
By /s/ Erin Avila By /s/ Kathleen M. Cruz
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Title HR Analyst Dated 17 June 1996
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