Termination Agreement - Aspect Communications Corp. and William H. Delevati
[ASPECT LETTERHEAD]
April 3, 2000
Mr. William H. Delevati
P.O. Box 1002
Campbell, CA 95009
Dear Hank:
This letter confirms the agreement (the "Agreement") between you and Aspect
Communications (the "Company") regarding your voluntary separation from
employment with the Company.
1. Transition Period.
(a) Resignation. You will resign from your position as an officer of the
Company effective April 6, 2000 (the "Transition Date").
(b) Transition Period. Commencing on April 6, 2000, and continuing through
August 15, 2000 ("Termination Date"), the Company shall retain you as a part-
time employee (the "Transition Period"). Your title during the Transition Period
shall be Executive Advisor. During this Transition Period, you will be available
to provide services to the Company as requested, on a flexible schedule basis,
not to exceed forty (40) hours a month. You may engage in employment, consulting
or other work relationships in addition to your work for the Company during the
Transition Period. The Company agrees to make reasonable arrangements to enable
you to perform your work for the Company at such times and in such a manner so
that it does not unreasonably interfere with other work activities in which you
may engage. As of the Termination Date, you will cease to be employed by the
Company in any capacity.
(c) Salary. During the Transition Period, the Company will continue to pay
your base salary at the same level ($23,000 per month) that you were receiving
as of the Transition Date. These salary payments will be made on the Company's
regular payroll dates subject to applicable withholdings and deductions. Upon
the Termination Date, you will be paid for any accrued and unused flexible time
off hours earned through the Termination Date.
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(d) Benefits. During the Transition Period, you will be entitled to
continue your participation in the Company's employee health insurance and other
benefit plans in effect on the Transition Date, pursuant to the terms of the
plans.
(e) Outplacement Services: You will be eligible to receive outplacement
services to the maximum amount of $10,000 which shall be paid directly to one
executive outplacement firm of your choice for services before August 6, 2000.
2. Stock Options. You currently hold qualified and nonqualified Incentive
Stock Options under the Company's 1999 Equity Incentive Plan (the "Plan")
(attached hereto as Exhibit A) for 100,000 shares of the common stock of the
Company (the "Option"). Pursuant to the terms of your Incentive Stock Option
("ISO") (attached hereto as Exhibit B) and the terms of the Plan, 25,000 shares
will vest on July 20, 2000. You will have thirty (30) days following the
Termination Date to exercise your option on those vested shares. Under your ISO
and the Plan, your Option will cease vesting on the Termination Date. All other
terms, conditions and limitations applicable to your Option, pursuant to the ISO
and the Plan, will remain in full force and effect. You agree that you have no
other stock rights in the Company or any parent or subsidiary other than your
participation in the ESPP Plan and other than those enumerated in this
paragraph. You are advised by the Company to seek independent legal advice with
respect to tax and securities law issues regarding your ISO and any sale of
Company stock you may make.
3. Quarterly Incentive Bonus. Pursuant to the terms of the Aspect Incentive
Plan for Fiscal Year 2000 (attached hereto as Exhibit C), you will be eligible
to receive a quarterly incentive bonus for the first quarter of 2000 (the
"Incentive Bonus").
4. Health Insurance. To the extent provided by the federal COBRA law or, if
applicable, state insurance laws, and by the Company's current group health
insurance policies, you will be eligible to continue your health insurance
benefits at your own expense after the Termination Date. Later, you may be able
to convert to an individual policy through the provider of the Company's health
insurance, if you wish.
5. Expense Reimbursement. You agree that within ten (10) days of the
Termination Date, you will submit your final documented expense reimbursement
statement reflecting all business expenses you incurred through the Termination
Date for which you seek reimbursement. The Company shall reimburse your expenses
pursuant to its regular business practice.
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Mr. Hank Delevati
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6. Other Compensation and Benefits. You acknowledge that, except as expressly
provided in this Agreement, you will not receive any additional compensation,
severance, stock options, stock or benefits from the Company after the
Termination Date.
7. Prior Agreements. You agree that except as expressly provided in this
Agreement, this Agreement renders null and void any and all prior agreements
between you and the Company.
8. References. You agree to direct any job reference inquiries to the
Company's Chief Executive Officer or the Senior Vice President for Human
Resources.
9. No Admissions. Nothing contained in this Agreement shall be construed as an
admission by you or the Company of any liability, obligation, wrongdoing or
violation of law.
10. Indemnification. The Company agrees to indemnify you for any losses arising
out of your discharge of duties with the Company to the fullest extent required
under California Labor Code section 2802.
11. Return of Company Property. You agree that, by the Termination Date (or
earlier if requested by the Company), you will return to the Company all Company
documents (and all copies thereof) and other Company property in your possession
or control, including, but not limited to: files, notes, notebooks, memoranda,
correspondence, drawings, books and records, plans and forecasts, reports,
studies, financial information, personnel information, sales and marketing
information, research and development information, specifications, computer-
recorded information, tangible property and equipment, credit cards, entry
cards, identification badges and keys; and any materials of any kind that
contain or embody any proprietary or confidential information of the Company
(and all reproductions thereof).
12. Confidential Information and Inventions Assignment Agreement. You
acknowledge your continuing obligations under your Proprietary Information and
Inventions Agreement (attached hereto as Exhibit D), both during and after your
employment.
13. Nonsolicitation. You agree that for one (1) year following the Termination
Date, you will not: directly or indirectly solicit, entice, induce or encourage
any employee or independent contractor of the Company to become an employee or
independent contractor to or for any other person or entity; or directly or
indirectly hire any employee or independent contractor of the Company or anyone
who was an employee or independent contractor of the
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Mr. Hank Delevati
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Company at any time between the Effective Date of this Agreement and the
anniversary of your Termination Date.
14. Nondisparagement. Both you and the Company agree not to disparage the other
party, and the other party's officers, directors, employees, shareholders and
agents, in any manner likely to be harmful to them or their business, business
reputation or personal reputation; provided that both you and the Company shall
respond accurately and fully to any questions, inquiry or request for
information when required by legal process. In addition, as part of this
Agreement, you agree not to voluntarily cooperate with any litigation effort
against the Company; provided that you may cooperate as required by law.
15. Confidentiality. The provisions of this Agreement shall be held in
strictest confidence by you and the Company and shall not be publicized or
disclosed in any manner whatsoever; provided, however, that: (a) you may
disclose this Agreement, in confidence, to your immediate family; (b) the
parties may disclose this Agreement in confidence to their respective attorneys,
accountants, auditors, tax preparers, and financial advisors; (c) the Company
may disclose this Agreement as necessary to fulfill standard or legally required
corporate reporting or disclosure requirements; and (d) the parties may disclose
this Agreement insofar as such disclosure may be necessary to enforce its terms
or as otherwise required by law.
16. Release of Claims. In exchange for the payments and other consideration
under this Agreement to which you would not otherwise be entitled, you hereby
release, acquit, and forever discharge the Company, its parents and
subsidiaries, and their officers, directors, agents, servants, employees,
attorneys, shareholders, partners, successors, assigns, affiliates, customers,
and clients of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys' fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the date this Agreement is executed, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with your employment with the Company or the termination of that
employment; claims or demands related to salary, bonuses, commissions, stock,
stock options, or any other ownership interests in the Company, vacation pay,
fringe benefits, expense reimbursements, severance pay, or any other form of
compensation; claims pursuant to any federal, state or local law, statute or
cause of action including, but not limited to, the federal Civil Rights Act of
1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended ("ADEA"); the federal Americans with Disabilities Act of 1990; the
California Fair Employment and
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Mr. Hank Delevati
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Housing Act, as amended; tort law; contract law; wrongful discharge;
discrimination; harassment; fraud; defamation; emotional distress; and breach of
the implied covenant of good faith and fair dealing.
17. ADEA Waiver. You acknowledge that you are knowingly and voluntarily waiving
and releasing any rights you may have under the ADEA and acknowledge that the
consideration given for the waiver and release in the preceding paragraph hereof
is in addition to anything of value to which you are already entitled. You
further acknowledge that you have been advised by this writing that: (a) your
waiver and release do not apply to any rights or claims that may arise after the
execution date of this release; (b) you should consult with an attorney prior to
executing this release (although you may choose not to do so); (c) you have
twenty-one (21) days to consider this Agreement (although you may voluntarily
execute this Agreement earlier); (d) you have seven (7) days following the
execution of this Agreement by the parties to revoke the Agreement; and (e) this
Agreement will not be effective until the date upon which the revocation period
has expired, which will be the eighth day after this Agreement is executed by
you (the "Effective Date").
18. Section 1542 Waiver. You acknowledge that you have read and understand
Section 1542 of the California Civil Code, which states:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
You hereby expressly waive and relinquish all rights and benefits under that
section and any law in any jurisdiction of similar effect with respect to your
release of any unknown or unsuspected claims you may have against the Company.
19. Arbitration. You and the Company agree that any dispute regarding the
interpretation or enforcement of this Agreement or any dispute arising out of
your employment or the termination of that employment with the Company, except
for disputes involving the protection of the Company's intellectual property,
shall be decided by confidential, final and binding arbitration conducted in San
Francisco, California by Judicial Arbitration and Mediation Services ("JAMS")
under the then-existing JAMS rules, rather than by litigation in court, trial by
jury, administrative proceeding, or in any other forum. Nothing in this
paragraph is intended to prevent either you or the Company from obtaining
injunctive relief in court to prevent irreparable harm pending the conclusion of
any such arbitration.
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20. Miscellaneous. This Agreement, including all exhibits, constitutes the
complete, final and exclusive embodiment of the entire agreement between you and
the Company with regard to this subject matter. It is entered into without
reliance on any promise or representation, written or oral, other than those
expressly contained herein, and it supersedes any other such promises,
warranties or representations. This Agreement may not be modified or amended
except in a writing signed by both you and a duly authorized officer of the
Company. This Agreement shall bind the heirs, personal representatives,
successors and assigns of both you and the Company, and inure to the benefit of
you and the Company, their heirs, successors and assigns. If any provision of
this Agreement is determined to be invalid or unenforceable, in whole or in
part, this determination will not affect any other provision of this Agreement
and the provision in question shall be modified by the court so as to be
rendered enforceable in a manner consistent with the intent of the parties
insofar as possible. This Agreement shall be deemed to have been entered into
and shall be construed and enforced in accordance with the laws of the State of
California as applied to contracts made and to be performed entirely within
California.
If this agreement is acceptable to you, please sign below and return the
original to me.
I wish you the best of success in your future endeavors.
Sincerely,
Aspect Communications
/s/ James R. Carreker
James R. Carreker
Chairman, Chief Executive Officer
Having read the foregoing, I hereby agree to the terms and conditions stated
above.
/s/ William H. Delevati Dated: April 3, 2000
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William H. Delevati