Exhibit 10.70
/date/
/name/
/title/
Aspect Communications Corporation
Xxx Xxxx, Xx 00000
Dear /name/:
This letter agreement (the "Agreement") is to confirm the terms of your
ongoing employment with Aspect Communications Corporation (the "Company") and
supersedes and replaces all prior oral and/or written agreements regarding the
subject matter hereof between you and the Company.
1. This Agreement will commence on the date hereof and continue until
February 28, 2001 (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 /title/, 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
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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 you and the Chief Executive
Officer on behalf of the Company.
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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 following a Change of
Control (as defined below), you will be entitled to receive payment of severance
benefits equal to 24 months of your regular monthly salary plus target bonus
(subject to any applicable tax withholding). Payment will be made in lump sum
following the termination. Pursuant to the provisions of COBRA, 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 for 18 months following the termination date, but
not longer than until you are covered by comparable health benefits from another
employer. 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, but only as it applies to accelerated vesting on stock options or
release of the Company's repurchase option on restricted stock, shall be null
and void. Other provisions of paragraph 4 are not affected. 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
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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.
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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 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) your
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duties and responsibilities as Senior Vice President, Information Technology and
Chief Information Officer of the Company (or a successor corporation) are
materially diminished without your prior written consent; or (ii) any reduction
in the total value of your base compensation and benefits occurs; or (iii) your
new business office location is more than thirty (30) miles or greater than your
current commute from your current business office location, and (B) within sixty
(60) days immediately following such material change in duties or reduction in
value of base compensation and benefits or relocation of business office you
elect to terminate your employment voluntarily. For purposes of this definition
and this Agreement, however, a change in title with the same responsibilities
shall not be considered a Constructive Termination, should this result solely
from an acquisition by a larger company in which you have continuing
responsibilities for the Company entity similar to those you had for the Company
when it was independent.
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8. You have signed, an Employee Agreement (the "Confidentiality
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Agreement") substantially in the form attached hereto as Exhibit B. You hereby
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represent and warrant to the Company that you 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 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 negotiations and prior agreements
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 re-negotiate 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.
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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 Xxxxx 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.
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 Communications Corporation
By: /authorized signature authority/
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Title: /title/
My agreement with the above terms is signified by my signature below.
/name/
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EXHIBIT A
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DESCRIPTION OF JOB DUTIES
AND RESPONSIBILITIES
/title/, /name/
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EXHIBIT B
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CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
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