Severance Agreement - Aspect Communications Corp. and Gary L. Smith
June 18, 2001
Gary L. Smith
This letter sets forth the substance of the separation agreement (the
"Agreement") which Aspect Communications (the "Company") is offering to you to
aid in your employment transition.
1. Termination. Your last day of work with the Company and your employment
termination date will be the earlier of December 31,2001 or employment
with another firm between June 18,2001 and December 31,2001. Your last day
of work will be June 18,2001 and your status as of June 18,2001 shall be
Executive Advisor to the CEO.
2. Accrued Salary and Paid Time Off. The Company will pay you all accrued
salary, and all accrued FTO that you have earned but not used through the
Separation Date, subject to standard payroll deductions and withholdings.
You are entitled to these payments regardless of whether or not you sign
this Agreement.
3. Severance Benefits. Although the Company has no obligation to provide
additional severance benefits, the Company will provide you with the
following severance package:
(a) Salary. The Company will make severance payments to you in the form of
continuation of your base salary in effect on June 18,2001, on a normal
payroll basis, subject to standard payroll deductions and withholdings,
through December 31,2001 or up to the date you commence employment with
another Company, whichever is earlier.
(b) Health Insurance. Your Aspect health benefits will be provided until
your termination date. After your termination date, you will be eligible
for up to 18 months of COBRA coverage at your cost provided you enroll
and pay the monthly premiums.
(c) Final Installment of Hiring Bonus. The Company will pay you the final
installment of your hiring bonus in the amount of $25,000.00 less all
applicable payroll deductions to be paid within ten days of the effective
date of this Agreement.
(d) Outplacement. Aspect has arranged outplacement services from Lee Hecht
Harrison for you not to exceed $5,000.00 .We encourage you to make full
use of these services to support your career transition process, both
within and outside Aspect. You will receive a packet of information when
you meet with Lee Hecht Harrison that provides details about your
benefits and career
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transition services. Please read all of this information carefully to
ensure that you understand your benefits coverage. To schedule an
appointment with Lee Hecht Harrison you may call Kendra Jordan, Vice
President of Business Development at 408-961-7610.
4. Stock Options. Under the terms of the Company's applicable Stock Option
Plan and your stock option grant, vesting of your stock option granted
pursuant to the Plan will cease as of your Separation Date. Your rights to
exercise your option as to any vested shares will be as set forth in the
Plan.
5. Other Compensation or Benefits. You acknowledge that, except as expressly
provided in this Agreement, you will not receive any additional
compensation, severance or benefits after the Termination Date.
6. Expense Reimbursements. 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, if any, for which you seek reimbursement.
The Company will reimburse you for these expenses pursuant to its regular
business practice.
7. Return of Company Property. By the Termination date, you agree to return
to the Company all Company documents (and all copies thereof) and other
Company property that you have had in your possession at any time,
including, but not limited to, Company files, notes, drawings, records,
business plans and forecasts, financial information, specifications,
computer-recorded information, tangible property (including, but not
limited to, computers), 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). You may retain your palm pilot and purchase your
Aspect laptop computer at book value, if you wish.
8. California Living Expenses and Lease Car. The Company will continue to
provide normal California living expenses to include the apartment and the
lease automobile through July 31,2001. You will return the car to the
leasing company by that date and you will vacate the apartment by July
31,2001. The Company will work with you to move the lease for the
automobile to your name and financial
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responsibility, if you so desire. This transaction must be completed no
later than July 31,2001.
9. Aspect Phone and Email. Aspect will provide limited voice mail and email
for you to facilitate communication with job prospects through the
termination date and as long as no abuses of the voice or email system by
you exist.
10. Proprietary Information Obligations. Both during and after your
employment you acknowledge your continuing obligations under your
Proprietary Information and Inventions Agreement not to use or disclose
any confidential or proprietary information of the Company without prior
written authorization from a duly authorized representative of the
Company. A copy of your Proprietary Information and Inventions Agreement
is attached hereto as Exhibit A.
1. Confidentiality. The provisions of this Agreement will be held in
strictest confidence by you and the Company and will not be publicized or
disclosed in any manner whatsoever; provided, however, that: (a) you may
disclose this Agreement 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. In
particular, and without limitation, you agree not to disclose the terms of
this Agreement to any current or former Company employee. If you violate
this confidentiality provision, the Company shall have the right to refuse
to pay any money owed to you under this Agreement without affecting the
enforceability of this Agreement. If you violate this confidentiality
provision, the Company shall have the right to refuse to pay any money
owed to you under this Agreement without affecting the enforceability of
this Agreement.
2. Non-disparagement. 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 will respond accurately and fully to any
question, inquiry or request for information when required by legal
process.
3. Non-solicitation. You agree that for one (1) year following the
Termination Date, you will not directly or indirectly solicit, entice,
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induce, or encourage any employee, consultant, or independent contractor
of the Company to terminate his or her relationship with the Company in
order to become an employee, consultant, or independent contractor to or
for any other person or entity.
4. Release. 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 its officers, directors, agents, servants, employees,
attorneys, shareholders, successors, assigns and affiliates, 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 execution date of this Agreement, 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 Americans with Disabilities Act of 1990; the federal
Age Discrimination in Employment Act of 1967, as amended ("ADEA"); the
California Fair Employment and 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.
5. ADEA Waiver. You acknowledge that you are knowingly and voluntarily
waiving and releasing any rights you may have under the ADEA, as amended.
You also 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 were already entitled. You further acknowledge that you
have been advised by this writing, as required by the ADEA, that: (a) your
waiver and release do not apply to any rights or claims that may arise
after the execution date of this Agreement; (b) you have been advised
hereby to consult with an attorney prior to executing this Agreement; (c)
you have twenty-one (21) days to consider this Agreement (although you may
choose to 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
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until the date upon which the revocation period has expired, which will be
the eighth day after this Agreement is executed by you, provided that the
Company has also executed this Agreement by that date ("Effective Date").
6. Disputes Subject to Arbitration. You and the Company agree that any
dispute regarding the interpretation, application or enforcement of this
Agreement or any dispute arising out of your employment or the termination
of that employment with Aspect Communications shall be decided by
confidential, final and binding arbitration conducted in San Jose,
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 Aspect Communications from
obtaining injunctive relief in court to prevent irreparable harm pending
the conclusion of any such arbitration.
7. Section 1542 Waiver. YOU UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE
OF ALL KNOWN AND UNKNOWN CLAIMS. In giving this release, which includes
claims which may be unknown to you at present, you acknowledge that you
have read and understand Section 1542 of the California Civil Code which
reads as follows: "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 of any jurisdiction
of similar effect with respect to your release of any unknown or
unsuspected claims you may have against the Company.
8. Miscellaneous. This Agreement, including Exhibit A, 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 will bind the heirs,
personal representatives, successors and assigns of both you and the
Company, and inure to the benefit of both 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
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will be modified by the court so as to be rendered enforceable. This
Agreement will be deemed to have been entered into and will 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 good luck in your future endeavors.
Sincerely,
ASPECT COMMUNICATIONS
By: /s/ John Viera
____________________________________________________________________
John Viera June 18, 2001
Senior Vice President Human Resources
Exhibit A - Proprietary Information and Inventions Agreement
Agreed:
/s/ Gary L. Smith
_______________________________________________________________________
Gary L. Smith Date
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Exhibit A
Proprietary Information and Inventions Agreement
(Original Kept in Employee File, Attach Copy)