exv10w98



 




Exhibit 10.98



[Aspect Communications letterhead]


VIA INTER-OFFICE MAIL


February 28, 2003


[ASPECT LOGO]


Beatriz V. Infante

Aspect Communications

San Jose, CA 95131


Dear Beatriz:


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, 2004 (the “Original Term”), unless extended for one or more
additional one-year terms upon mutual written agreement between you and the
Company or unless terminated pursuant to the terms described herein. In no way
limiting the foregoing, if the Company has not affirmatively renewed or
terminated this Agreement as of the expiration of the Original Term or any
extension thereof, this Agreement will be extended for a series of successive
one month periods, pending an affirmative decision by the Company to either
renew or not renew the Agreement. Affirmative renewal or termination by the
Company shall be evidenced by the adoption of resolutions by the Compensation
Committee of the Board of Directors of the Company (the “Committee”), or,
alternatively, by the Board of Directors. In addition, in the event that the
Company has entered into discussions with a third party regarding a Change of
Control in the beneficial ownership of the Company (as defined below) and such
Change of Control discussions are ongoing at the end of the Original Term or any
extension (including any one month extension as provided for above), this
Agreement automatically shall be extended until the later of (a) the end of a
period of eighteen (18) months following the closing of such Change of Control
transaction or (b) the time that the parties have ceased their discussions.


     2.     Your title, reporting structure, job duties and responsibilities are
described on Exhibit A attached hereto. As a condition to your continuing
employment, you agree to execute and comply with the terms of the Confidential
Information and Invention Assignment Agreement (the “Confidentiality Agreement”)
that is attached to this Agreement as Exhibit B. You agree to the best of your
ability and experience that you will, to the reasonable satisfaction of the
Company and its Board, at all times loyally and


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conscientiously perform all of the duties and obligations required of your
pursuant to the terms of this Agreement; provided, however, that you shall not
be precluded from engaging in civic, charitable or religious activities, or from
serving on the boards of directors of other business entities with the prior
written approval of the Board of Directors of the Company (the “Board”), so long
as such activities or service do not interfere with your responsibilities to the
Company hereunder. You will comply with and be bound by the Company’s operating
policies, procedures and practices in effect from time to time during the term
of your employment. You will devote your best efforts to the interest of the
Company and will not engage in other employment with any Company customer,
competitor or supplier without the prior written consent of the Company’s Board
of Directors. You will not accept any other position if such position will
impair your ability to fulfill your obligations to the Company.


     3.     You acknowledge that your employment is and will continue to be
at-will, meaning that your employment with the Company may be terminated by
either you or the Company at any time for any or no reason, with or without
cause, and with or without notice. 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. Notwithstanding the
foregoing, upon the termination of your employment for any reason, you still
shall have the right to receive (i) payment of regular base salary and any
unpaid target bonus, in either case as earned but unpaid through the date of
termination, (ii) payment of all of your accrued and unused vacation through the
date of termination, (iii) following your submission of proper expense reports,
reimbursement by the Company for all expenses reasonably and necessarily
incurred by you in connection with the business of the Company prior to
termination, (iv) vested contributions and earnings from the Company’s 401(k)
plan, and (v) any post-termination benefits under the Company’s then-applicable
employee benefit plans, policies or arrangements in accordance with the terms of
such plans, policies and arrangements. Any payments described in this paragraph
shall be made promptly upon termination, but in any event in compliance with
applicable law and any applicable terms of the Company’s plans, policies, and
arrangements. The rights and duties created by this paragraph may not be
modified in any way except by a written agreement executed by Chairman of the
Board (COB), President & Chief Executive Officer (CEO) and the Board of
Directors on behalf of the Company.


     4.     If your employment is terminated by the Company without Cause (as
defined below) and other than as a result of your death or disability, or if
your employment is terminated by you as a result of a Constructive Termination
(as defined below), in either case in the period of time beginning


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three (3) months prior to the effective date of Change of Control
and ending thirteen (13) months following the effective date of a
Change of Control, then, subject to your obligations and such
other terms and conditions as described herein, including without
limitation those set forth in Section 8, 18 and 19 below, the
Company will provide you with the following severance benefits:




	 	(a)	 	The Company will continue to pay you your regular base
salary plus annual target bonus (at the rate that is in
effect on the date of your termination or as of
immediately prior to the effective date of the Change of
Control, whichever is greater), pursuant to the
Company’s regular payroll schedule for a period of
eighteen (18) months (the “Severance Period”).
	 
	 	(b)	 	Provided that you make a timely election to continue
coverage under the Company’s group medical insurance
plans pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”), the Company will
pay the applicable premiums for you and your eligible
dependents for such continued coverage for the lesser of
eighteen (18) months or until you become eligible for
comparable group medical insurance benefits from another
employer or are otherwise eligible for COBRA
continuation coverage. Nothing in this Section 4 shall
restrict the ability of the Company or its successor
from changing some or all of the terms of such health
insurance benefits, provided that all similarly situated
participants are treated the same.
	 
	 	(c)	 	With respect to any stock options you hold that is
not otherwise fully exercisable and vested as of the
termination date, such stock options will become fully
vested as of immediately prior to the termination of
your employment with the Company, and will not
thereafter become exercisable as to those shares that
become vested pursuant to this Section 4(c) over the
Severance Period in eighteen (18) equal monthly
installments, such that, subject to your continued
compliance with the terms of this Agreement throughout
the Severance Period, these stock options will be fully
vested and exercisable as of the end of the Severance
Period. If the Company determines at any point during
the Severance Period that you are not compliance with
your obligations pursuant to this Agreement, you will
have no right to exercise the stock option as to, and
you



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	 	 	 	will forfeit all right, title and interest in or to, any shares which,
pursuant to this Section 4(c), have not become exercisable as of the
first date on which you were not in compliance with such obligations.
In connection with this Section 4(c), the Company will amend your
current stock options to provide that such awards will be exercisable
as to any vested shares following the termination of your employment
until the later of ninety (90) days following your termination date,
or, if you are eligible for acceleration of vesting and exercisability
pursuant to this Section 4(c), until the ninetieth (90th) day
following the date on which the final installment of each respective
stock option became exercisable. In no event shall any stock option
subject to this Section 4(c) be exercisable following the expiration
of the original term of such stock option.



     Notwithstanding the foregoing, you shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise nor, except for your eligibility for COBRA continuation coverage
set forth in b.) above and except as set forth in Sections 18 and 19 below,
shall the amount of any payment or benefit provided for in this paragraph be
reduced or otherwise affected by any compensation or benefits received by you as
a result of employment by another employer or self-employment, by any retirement
benefits regardless of source, by offset against any amount claimed to be owed
by you to the Company, or otherwise. Any severance benefits described herein
will be subject to applicable tax withholdings.


     5.     In the event that the severance benefits provided to you by this
Agreement (i) constitute “parachute payments” within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable
successor provisions, and (ii) but for this paragraph would be subject to the
excise tax imposed by Section 4999 of the Code, or any comparable successor
provisions (the “Excise Tax”), then your benefits hereunder shall be either




	 	(i)	 	provided to you in full, or
	 
	 	(ii)	 	provided to you as to such lesser extent which would result in no
portion of such benefits being subject to the Excise Tax,



whichever of the foregoing amounts, when taking into account applicable federal,
state, local and foreign income and employment taxes, the Excise Tax,


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and any other applicable taxes, results in the receipt by you, on an after-tax
basis, of the greatest amount of benefits, notwithstanding that all or some
portion of such benefits may be taxable under the Excise Tax. Unless the
Company and you agree otherwise in writing, any determination required under
this paragraph shall be made in writing in good faith by a qualified third
party (the “Professional Service Firm”). In the event of a reduction of
benefits hereunder, you shall be given the choice of which benefits to reduce,
in the event that the reduction to zero dollars ($0) of all benefits paid in
cash is insufficient to avoid liability under the Excise Tax. For purposes of
making the calculations required by this paragraph, the Professional Service
Firm may make reasonable assumptions and approximations concerning applicable
taxes and may rely on reasonable, good faith interpretations concerning the
application of the Code, and other applicable legal authority. The Company and
you shall furnish to the Professional Service Firm such information and
documents as the Professional Service Firm may reasonably request in order to
make a determination under this Section 5. The Company shall bear all costs the
Professional Service Firm may reasonably incur in connection with any
calculations contemplated by this paragraph.



          If, notwithstanding any reduction described in this paragraph, the
Internal Revenue Service (“IRS”) determines that you are liable for the Excise
Tax as a result of the receipt of the payment of benefits described above, then
you shall be obligated to pay back to the Company, within thirty (30) days
after a final IRS determination or in the event that you challenge the final
IRS determination, a final judicial determination, a portion of the payment
equal to the “Repayment Amount.” The Repayment Amount with respect to the
payment of benefits shall be the smallest amount, if any, as shall be required
to be paid to the Company so that your net after-tax proceeds with respect to
any payment of benefits (after taking into account the payment of the Excise
Tax and all other applicable taxes imposed on such payment) shall be maximized.
The Repayment Amount with respect to the payment of benefits shall be zero if a
Repayment Amount of more than zero would not result in your net after-tax
proceeds with respect to the payment of such benefits being maximized. If the
Excise Tax is not eliminated pursuant to this paragraph or otherwise pursuant
to this Section 5, then you shall pay the Excise Tax and the Company shall not
bear any liability to you or any other party for taxes, interest, penalties or
additions to tax as a result of your being subject to the Excise Tax. To the
extent that the Company becomes liable to any party for any amount as a result
of your being subject to the Excise Tax, you shall indemnify the Company for
such amount.




          Notwithstanding any other provision of this paragraph, if (i) there
is a reduction in the payment of benefits as described in this paragraph, (ii)
the IRS later determines that you are liable for the Excise Tax, the



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payment of which would result in the maximization of your net after-tax proceeds
(calculated as if your benefits previously had not been reduced), and (iii) you
pay the Excise Tax, then the Company shall pay to you those benefits which were
reduced pursuant to this paragraph contemporaneously or as soon as
administratively possible after you pay the Excise Tax so that your net
after-tax proceeds with respect to the payment of benefits is maximized.


     6.     For purposes of this Agreement, the following definitions will apply:



          (a) “Cause” for your termination will exist if the Company terminates
your employment for any of the following reasons: (i) you willfully fail to
substantially perform your duties hereunder (other than any such failure due to
your physical or mental illness), and such willful failure is not remedied
within ten (10) business days after written notice, 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
(including, but not limited to, an act of fraud or embezzlement against the
Company) that has caused or is reasonably expected to result in material injury
to the Company or any of its affiliates, or any act that constitutes any knowing
misrepresentation involving or related to the Company’s financial statements,
(iii) you are convicted of or enter a plea of guilty or nolo contendere to a
crime that constitutes a felony related to your employment with the Company or a
crime that materially adversely affects your ability to perform your duties on
behalf of the Company, 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 ten (10) business days
after written notice from the Company’s Chief Executive Officer or the Board of
Directors, 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 (i) a dissolution or liquidation of
the Company; (ii) a sale, lease or other disposition of all or substantially all
of the assets of the Company so long as the Company’s stockholders of record
immediately prior to such transaction will, immediately after such transaction,
fail to possess direct or indirect beneficial ownership of more than fifty
percent (50%) of the voting power of the acquiring entity (for purposes of this
clause 6(b)(ii), any person who acquired securities of the Company prior to the
occurrence of such asset transaction in contemplation of such transaction and
who after such transaction possesses direct or indirect ownership of at least
ten percent (10%) of the securities of the acquiring entity immediately
following such transaction shall not be included in the group of



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stockholders of the Company immediately prior to such transaction); (iii)
either a merger or consolidation in which the Company is not the surviving
corporation and the stockholders of the Company immediately prior to the merger
or consolidation fail to possess direct or indirect beneficial ownership of
more than fifty percent (50%) of the voting power of the securities of the
surviving corporation (or if the surviving corporation is a controlled
affiliate of another entity, then the required beneficial ownership shall be
determined with respect to the securities of that entity which controls the
surviving corporation and is not itself a controlled affiliate of any other
entity) immediately following such transaction, or a reverse merger in which
the Company is the surviving corporation and the stockholders of the Company
immediately prior to the reverse merger fail to possess direct or indirect
beneficial ownership of more than fifty percent (50%) of the securities of the
Company (or if the Company is a controlled affiliate of another entity, then
the required beneficial ownership shall be determined with respect to the
securities of that entity which controls the Company and is not itself a
controlled affiliate of any other entity) immediately following the reverse
merger (for purposes of this clause 6(b)(iii), any person who acquired
securities of the Company prior to the occurrence of a merger, reverse merger,
or consolidation in contemplation of such transaction and who after such
transaction possesses direct or indirect beneficial ownership of at least ten
percent (10%) of the securities of the Company or the surviving corporation (or
if the Company or the surviving corporation is a controlled affiliate, then of
the appropriate entity as determined above) immediately following such
transaction shall not be included in the group of stockholders of the Company
immediately prior to such transaction; (iv) an acquisition by any person,
entity or group within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), or any comparable
successor provisions (excluding any employee benefit plan, or related trust,
sponsored or maintained by the Company or a subsidiary or other controlled
affiliate of the Company) of the beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of
securities of the Company representing at least fifty percent (50%) of the
combined voting power entitled to vote in the election of directors; or (v) the
individuals who, as of the date of this Agreement, are members of the Board
(the “Incumbent Board”), cease for any reason to constitute at least fifty
percent (50%) of the Board. If the election, or nomination for election by the
Company’s stockholders, of any new director was approved by a vote of at least
fifty percent (50%) of the Incumbent Board, such new director shall be
considered as a member of the Incumbent Board.


     (c)  “Constructive Termination” will be deemed to occur if you resign
from any and all positions which you hold with the Company (including any
membership on the Company’s Board of Directors) within


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forty-five (45) days immediately after one or more of the following events: (i)
your duties and responsibilities to the Company (or a successor corporation) in
the position listed on Exhibit are materially diminished relative to your duties
and responsibilities as in effect at any time from the time immediately prior to
the occurrence of a Change of Control or at any time thereafter, without your
prior written consent; (ii) you are subject to any reduction in the total value
of your base compensation and benefits, provided that an across-the-board
reduction in the base compensation and benefits of all other employees or
consultants in positions similar to yours by the same percentage amount (or
under the same terms and conditions) as part of a general base compensation
reduction and/or benefit reduction shall not constitute such a qualifying
reduction; or (iii) without your prior written consent, the principal place at
which you perform your employment duties and responsibilities is relocated such
that your new business office location results in a commute for you that is both
(A) longer than your commute prior to the relocation and (B) greater than fifty
(50) miles each way. For purposes of this definition and this Agreement,
however, a change in title with substantially the same duties and
responsibilities shall not be considered a Constructive Termination, should you
have continuing responsibilities for the acquirer which are substantially the
same as those you had for the Company prior to the Change of Control
transaction.


     7.     You hereby represent and warrant to the Company that you have, during
your employment with the Company, complied with all obligations under the
Confidentiality Agreement. You further agree that the provisions of the
Confidentiality Agreement will survive any termination of this Agreement or of
your employment relationship with the Company.


     8.     Upon your involuntary termination of employment other than for Cause
or your voluntary termination as a result of a Constructive Termination, and as
a condition of the receipt of any benefits under this Agreement, you shall
execute a release of all legal claims against the Company related to your
employment on a form prepared by the Company (a “Release”). If you do not
execute a Release within the period set forth in the Release (which period shall
not be shorter than seven (7) days and shall not be longer than forty-five (45)
days), or if you are given the right to revoke such Release and you choose to so
revoke such Release within the subsequent seven (7) business day period, you
will have no right to receive any of the benefits described in Section 4 above.


     9.     You represent that you have not entered into any agreements,
understandings, or arrangements with any other person or entity which would be
breached by you as a result of, or that would in any way preclude or


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prohibit you from, entering into this Agreement or performing any of the duties
and responsibilities provided for herein.


     10.     Any successor to the Company as a result of the occurrence of a Change
of Control (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) or otherwise which succeeds to all or
substantially all of the Company’s business and/or assets shall assume the
obligations under this Agreement and agree 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.
For all purposes under this Agreement, the term “Company” shall include any
successor to the Company’s business and/or assets which executes and delivers
the assumption agreement described in this paragraph or which becomes bound by
the terms of this Agreement by operation of law.



          The terms of this Agreement and all of your rights hereunder shall
inure to the benefit of, and be enforceable by, your personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees or 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, i.e., the rights and responsibilities
of you and the Company in the event of certain terminations of your employment
with the Company relating to the occurrence of a Change of Control.


     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, by
facsimile or email, or by a nationally-recognized delivery service (such as
Federal Express or Express Mail), or 72 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


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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, modified or replaced and
(iii) the balance of the Agreement will be enforceable in
accordance with its terms. Specifically with respect to the
covenants contained in Sections 18 and 19 below, the parties
intend that such covenants shall be construed as a series of
separate covenants, one for each city, county, state, nation and
other political subdivision of the Business Area (as defined in
Section 19 below). If, in any judicial, mediation or arbitration
proceeding, a court, mediator or arbitrator shall refuse to
enforce any of the separate covenants (or any part thereof)
deemed included in such Sections, then any such unenforceable
covenant (or such part) shall be deemed eliminated from this
Agreement for the purpose of those proceedings to the extent
necessary to permit the remaining separate covenants (or portions
thereof) to be enforced by such court, mediator or arbitrator. It
is the intent of the parties that the covenants set forth in this
Agreement be enforced to the maximum degree permitted by
applicable law. Further, in the event that the any of the
provisions of Sections 18 or 19 should be deemed to exceed the
scope, time or geographic limitations of applicable law regarding
covenants not to compete, then such provisions shall be
automatically reformed to the maximum scope, time or geographic
limitations, as the case may be, permitted by applicable laws.


     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 mutually agreed upon by the
parties. 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. Except as set
forth in Section 15, the arbitrator shall not have authority to
modify the terms of this Agreement. The Company shall pay the
costs of the arbitration proceeding; provided however that each
party shall, unless otherwise determined by the arbitrator, bear
its, his or her own attorneys’ fees and expenses. 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.


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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, that you have done so or knowingly declined to do so,
and you have read and understood all of the terms and provisions
of this Agreement.


     18.     You agree that during the term of your employment (and
any concurrent or subsequent consulting relationship) with the
Company, and for a period of eighteen (18) months immediately
thereafter, you will not either directly or indirectly solicit,
induce, recruit or encourage any of the Company’s employees or
consultants to terminate their relationship with the Company, or
attempt to solicit, induce, recruit, encourage or take away
employees or consultants of the Company, either for your own
benefit or for the benefit of any other person or entity.
Further, during your employment (and any concurrent or subsequent
consulting relationship) with the Company and at any time
thereafter, you will not use any confidential or proprietary
information of the Company to attempt to negatively influence any
of the Company’s clients or customers from purchasing Company
products or services or to solicit or influence or attempt to
solicit or influence any client, customer or other person either
directly or indirectly, to direct his, her or its purchase of
products and/or services to any person, firm, corporation,
institution or other entity in competition with the business of
the Company. You acknowledge that upon your breach of this
Section 18, the Company would sustain irreparable harm from such
breach, and, therefore, you agree that in addition to any other
remedies which the Company may have under this Agreement or
otherwise, the Company’s obligations to provide the benefits to
you as described in Section 4 above shall immediately terminate,
you shall have no claim to receive such benefits from the
Company, the Release referred to in Section 8 above shall remain
in all respects valid and binding, and the Company shall be
entitled to obtain equitable relief, including specific
performance and injunctions, restraining you from committing or
continuing any such violation of this Section 18.


     19.     If your employment is terminated under the
circumstances set forth in Section 4 above, you agree that for a
period of eighteen (18) months immediately following the
termination of your employment, you will not (i) enter into or
participate in the business of developing, marketing and
servicing hardware and software related to contract centers,
including those involving voice-over IP, traditional telephony,
e-mail, voicemail, Web, fax and wireless business communications
of the type developed, marketed or serviced or being developed or
proposed to be developed, marketed or serviced by the Company as
of the date of termination of employment (the “Restricted
Business”) or (ii) directly or indirectly own, manage, operate,
control or otherwise engage or participate in, or become
connected as an owner, partner, principal, creditor, salesman,
guarantor, advisor, member of the board of directors of, employee


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of or consultant in any entity or business, or any division,
group or other subset of any business, engaged in the Restricted
Business. Subject to Section 15 above, the restriction set forth
in the Section 19 shall apply worldwide (the “Business Area”).



          (a) You acknowledge that upon your breach of this Section
19, the Company would sustain irreparable harm from such breach,
and, therefore, you agree that in addition to any other remedies
which the Company may have under this Agreement or otherwise, the
Company’s obligations to provide the benefits to you as described
in Section 4 above shall immediately terminate, you shall have no
claim to receive such benefits from the Company, the Release
referred to in Section 8 above shall remain in all respects valid
and binding, and the Company shall be entitled to obtain
equitable relief, including specific performance and injunctions,
restraining you from committing or continuing any such violation
of this Section 19.




          (b) You agree that you will be able to earn a livelihood
without violating the restrictions set forth in this Section 19.
You agree that the character, duration and geographical scope of
Section 19 are reasonable in light of the circumstances as they
exist on the effective date of this Agreement.



     19.     You agree not to enter into any agreement, either
written or oral, in conflict with the provisions of this
Agreement. You certify that, to the best of your information and
belief, you are not a party to any other agreement that will
interfere with your full compliance with this Agreement.


     20.     This Agreement (i) shall survive your employment by the
Company (ii) does not in any way restrict your right or the right
of the Company to terminate your employment, (iii) inures to the
benefit of successors and assignees of the Company, and (iv) is
binding upon your heirs and legal representatives.


     21.     You certify an acknowledge that you have carefully read
all of the provisions of the agreement and that you understand
and will fully and faithfully comply with such provisions.


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Please indicate your agreement with the above terms by signing below.



	 	 	 	 	 
	 	 	Sincerely,
	 	 	 	 	 
	 	 	Aspect Communications Corporation
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	 
	 	 	
Date:	 	 
	 	 	 	 	

	 	 	 	 	 
	 	 	
Title:	 	 
	 	 	 	 	

	 	 	 	 	 
	 	 	
Address:
	 	1310 Ridder Park Drive

San Jose, CA 95131
	 	 	 	 	 
	 	 	Facsimile Number: (408) 325-2442



My signature below signifies my agreement with the above terms.



	 	 	 
	By:	 	 
	 	 	


	Address:	 	 
	 	 	


	Date:	 	 
	 	 	






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Exhibit F2: Change-in-Control Template




EXHIBIT A




DESCRIPTION OF TITLE, REPORTING STRUCTURE,

JOB DUTIES AND RESPONSIBILITIES



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EXHIBIT B



[ASPECT LOGO]



CONFIDENTIALITY AGREEMENT



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February 28, 2003


VIA INTER-OFFICE MAIL


Beatriz V. Infante

Chairman of the Board, President and Chief Executive Officer

Aspect Communications Corporation

1310 Ridder Park Drive

San Jose, CA 95131


Dear Beatriz:


     This letter agreement (the “Agreement”) is to confirm the terms of your
ongoing employment with Aspect Communications Corporation (the “Company”). It is
intended to provide certain severance benefits and as such to supplement the
existing letter agreement between you and the Company dated February 28, 2003
(the “Change of Control Agreement”) addressing certain benefits related to a
Change of Control (as defined therein) of the Company. Capitalized terms not
defined in this Agreement shall have the meanings given them in the Change of
Control Agreement.


     1.     This Agreement will commence on the date hereof and continue until
February 28, 2004 (the “Original Term”), unless extended for one or more
additional one-year terms upon mutual written agreement between you and the
Company or unless terminated pursuant to the terms described herein. Approval by
the Company of a renewal of this Agreement shall be evidenced by the adoption of
resolutions by the Compensation Committee (the “Committee”) of the Board of
Directors of the Company (the “Board”), or, alternatively, by the Board. In
addition, in the event that the Company has entered into discussions with a
third party regarding a Change of Control and such Change of Control discussions
are ongoing at the end of the Original Term or any extension, this Agreement
automatically shall be extended until the later of (a) the end of a period of
eighteen (18) months following the closing of such Change of Control transaction
or (b) the time that the parties have ceased their discussions.


     2.     You are employed as President and Chief Executive Officer of the
Company, and as such report to the Company’s Board. Your job duties and
responsibilities entail those typically required of a President and CEO of a
public company. You are also Chairman of the Board.


Aspect Communications

1310 Ridder Park Drive

San Jose, CA 95131-2313

tel (408) 325-2200

fax (408) 325-2260

www.aspect.com








 


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     3.     You acknowledge that your employment is and will continue to be
at-will, meaning that your employment with the Company may be terminated by
either you or the Company at any time for any or no reason, with or without
cause (including Cause as defined below), and with or without notice. Nothing
in this Agreement will entitle you in the event your employment terminates for
any reason to any payments, benefits, damages, award or compensation other than
as explicitly provided for in this Agreement. Notwithstanding the foregoing,
upon the termination of your employment for any reason, you still shall have
the right to receive (i) payment of regular base salary and any unpaid target
bonus, in either case as earned but unpaid through the date of termination,
(ii) payment of all of your accrued and unused vacation through the date of
termination, (iii) following your submission of proper expense reports,
reimbursement by the Company for all expenses reasonably and necessarily
incurred by you in connection with the business of the Company prior to
termination, (iv) vested contributions and earnings from the Company’s 401(k)
plan, and (v) any post-termination benefits under the Company’s then-applicable
employee benefit plans, policies or arrangements in accordance with the terms
of such plans, policies and arrangements. Any payments described in this
paragraph shall be made promptly upon termination, but in any event in
compliance with applicable law and any applicable terms of the Company’s plans,
policies, and arrangements. The rights and duties created by this paragraph may
not be modified in any way except by a written agreement executed by yourself
on your behalf and by an officer or member of the Board authorized by the Board
or the Committee to sign on behalf of the Company.


     4.     If your employment is terminated by the Company without Cause (as
defined below) and other than as a result of your death or disability, or if
your employment is terminated by you as a result of a Constructive Termination
(as defined below), under any circumstances such that such termination without
Cause or Constructive Termination is not governed by the terms of the Change of
Control Agreement (that is, for any termination without Cause or Constructive
Termination other than one that occurs in the period of time beginning three
(3) months prior to the effective date of a Change of Control and ending
thirteen (13) months following the effective date of a Change of Control, which
terminations shall be covered by the Change of Control Agreement), then, subject
to your continued observance of your obligations and such other terms and
conditions as described herein, including without limitation those set forth in
Sections 7, 16 and 17 below, the Company will provide you with the following
severance benefits:




	 	(a)	 	The Company will continue to pay you your regular base salary plus
your annual target bonus (at the rate that is in










 



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	 	 	 	effect on the date of your termination), in equal
proportionate amounts pursuant to the Company’s regular
payroll schedule for a period of eighteen (18) months (the
“Severance Period”).
	 
	 	(b)	 	Provided that you make a timely election to continue
coverage under the Company’s group medical insurance plans
pursuant to the Consolidated Omnibus Budget Reconciliation
Act of 1985 (“COBRA”), the Company will pay the applicable
premiums for you and your eligible dependents for such
continued coverage for the lesser of eighteen (18) months or
until you become eligible for comparable group medical
insurance benefits from another employer or are otherwise
ineligible for COBRA continuation coverage. Nothing in this
Section 4(b) shall restrict the ability of the Company or
its successor from changing some or all of the terms of such
health insurance benefits, provided that all similarly
situated participants are treated the same.
	 
	 	(c)	 	With respect to any stock option you hold that is not
otherwise fully exercisable and vested as of the termination
date, such stock options will become fully vested as of
immediately prior to the termination of your employment with
the Company, and will thereafter become exercisable as to
those shares that become vested pursuant to this Section
4(c) over the Severance Period in eighteen (18) equal
monthly installments, such that, subject to your continued
compliance with the terms of this Agreement throughout the
Severance Period, these stock options will be fully vested
and exercisable as of the end of the Severance Period. If
the Company determines at any point during the Severance
Period that you are not in compliance with your obligations
pursuant to this Agreement, you will have no right to
exercise the stock options as to, and you will forfeit all
right, title and interest in or to, any shares which,
pursuant to this Section 4(c), have not become exercisable
as of the first date on which you were not in compliance
with such obligations. In connection with this Section 4(c),
the Company will amend your current stock options to provide
that such awards will be exercisable as to any vested shares
following the termination of your employment until the later
of ninety (90) days following










 





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	 	 	 	your termination date, or, if you are eligible for
acceleration of vesting and exercisability pursuant to this
Section 4(c), until the ninetieth (90th) day following the
date on which the final installment of each respective stock
option became exercisable. In no event shall any stock
option subject to this Section 4(c) be exercisable following
the expiration of the original term of such stock option.




          Notwithstanding the foregoing, you shall not be required to
mitigate the amount of any payment provided for in this Agreement by
seeking other employment or otherwise nor, except for your eligibility for
COBRA continuation coverage as set forth in b.) above and except as set
forth in Sections 16 and 17 below, shall the amount of any payment or
benefit provided for in this paragraph be reduced or otherwise affected by
any compensation or benefits received by you as a result of employment by
another employer or self-employment, by any retirement benefits regardless
of source, by offset against any amount claimed to be owed by you to the
Company, or otherwise. Any severance benefits described herein will be
subject to applicable tax withholdings.



     5.     In the event that the severance benefits provided to you by
this Agreement (i) constitute “parachute payments” within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”), or any comparable successor provisions, and (ii) but for this
paragraph would be subject to the excise tax imposed by Section 4999 of
the Code, or any comparable successor provisions (the “Excise Tax”), then
your benefits hereunder shall be either




	 	(i)	 	provided to you in full, or
	 
	 	(ii)	 	provided to you as to such lesser extent which would result
in no portion of such benefits being subject to the Excise
Tax,



whichever of the foregoing amounts, when taking into account applicable
federal, state, local and foreign income and employment taxes, the Excise
Tax, and any other applicable taxes, results in the receipt by you, on an
after-tax basis, of the greatest amount of benefits, notwithstanding that
all or some portion of such benefits may be taxable under the Excise Tax.
Unless the Company and you agree otherwise in writing, any determination
required under this paragraph shall be made in writing in good faith by a
qualified third party (the “Professional Service Firm”). In the event of a
reduction of benefits hereunder, you shall be given the choice of which
benefits to reduce, in the








 


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event that the reduction to zero dollars ($0) of all benefits
paid in cash is insufficient to avoid liability under the Excise
Tax. For purposes of making the calculations required by this
paragraph, the Professional Service Firm may make reasonable
assumptions and approximations concerning applicable taxes and
may rely on reasonable, good faith interpretations concerning the
application of the Code, and other applicable legal authority.
The Company and you shall furnish to the Professional Service
Firm such information and documents as the Professional Service
Firm may reasonably request in order to make a determination
under this Section 5. The Company shall bear all costs the
Professional Service Firm may reasonably incur in connection with
any calculations contemplated by this paragraph.


     If, notwithstanding any reduction described in this
paragraph, the Internal Revenue Service (“IRS”) determines that
you are liable for the Excise Tax as a result of the receipt of
the payment of benefits described above, then you shall be
obligated to pay back to the Company, within thirty (30) days
after a final IRS determination or in the event that you
challenge the final IRS determination, a final judicial
determination, a portion of the payment equal to the “Repayment
Amount.” The Repayment Amount with respect to the payment of
benefits shall be the smallest amount, if any, as shall be
required to be paid to the Company so that your net after-tax
proceeds with respect to any payment of benefits (after taking
into account the payment of the Excise Tax and all other
applicable taxes imposed on such payment) shall be maximized. The
Repayment Amount with respect to the payment of benefits shall be
zero if a Repayment Amount of more than zero would not result in
your net after-tax proceeds with respect to the payment of such
benefits being maximized. If the Excise Tax is not eliminated
pursuant to this paragraph or otherwise pursuant to this Section
5, then you shall pay the Excise Tax and the Company shall not
bear any liability to you or any other party for taxes, interest,
penalties or additions to tax as a result of your being subject
to the Excise Tax. To the extent that the Company becomes liable
to any party for any amount as a result of your being subject to
the Excise Tax, you shall indemnify the Company for such amount.


     Notwithstanding any other provision of this paragraph, if (i)
there is a reduction in the payment of benefits as described in
this paragraph, (ii) the IRS later determines that you are liable
for the Excise Tax, the payment of which would result in the
maximization of your net after-tax proceeds (calculated as if
your benefits previously had not been reduced), and (iii) you pay
the Excise Tax, then the Company shall pay to you those benefits
which were reduced pursuant to this paragraph contemporaneously
or as soon as administratively possible after you pay the Excise
Tax so that your net after-tax proceeds with respect to the
payment of benefits is maximized.









 


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     6.     For purposes of this Agreement, the following definitions will apply:



          (a) “Cause” for your termination will exist if the Company terminates
your employment for any of the following reasons: (i) you willfully fail to
substantially perform your duties hereunder (other than any such failure due to
your physical or mental illness), and such willful failure is not remedied
within ten (10) business days after written notice from the Chairman of the
Committee, 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 (including, but not limited to, an act of fraud or
embezzlement against the Company) that has caused or is reasonably expected to
result in material injury to the Company or any of its affiliates, or any act
that constitutes any knowing misrepresentation involving or related to the
Company’s financial statements, (iii) you are convicted of or enter a plea of
guilty or nolo contendere to a crime that constitutes a felony related to your
employment with the Company or a crime that materially adversely affects your
ability to perform your duties on behalf of the Company, 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 (as defined in Section 9 below), and such
willful breach is not remedied within ten (10) business days after written
notice from the Chairman of the Committee, which written notice shall state that
failure to remedy such conduct may result in an involuntary termination for
Cause.




          (b) “Constructive Termination” will be deemed to occur if you resign
from any and all positions which you hold with the Company (including any
membership on the Company’s Board of Directors) within forty-five (45) days
immediately after one or more of the following events: (i) your position with
the Company is, or your duties and responsibilities as President and Chief
Executive Officer of the Company are, materially diminished relative to your
position, duties and responsibilities as in effect immediately prior to such
change, without your prior written consent; (ii) without your prior written
consent, you are subject to any reduction in the total value of your base
compensation and benefits, provided that an across-the-board reduction in the
base compensation and benefits of all other executive officers of the Company by
the same percentage amount (or under the same terms and conditions) as part of a
general base compensation reduction and/or benefit reduction shall not
constitute such a qualifying reduction; (iii) without your prior written
consent, the principal place at which you perform your employment duties and
responsibilities is relocated such that your new business office location
results in a commute for you that is both (A) longer









 


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than your commute prior to the relocation and (B) greater than fifty (50) miles
each way; and (iv) the Board fails to renew this Agreement upon expiration of
the Original Term or any one-year renewal thereof.


     7.     Upon your involuntary termination of employment other than for Cause
or your voluntary termination as a result of a Constructive Termination, and as
a condition of the receipt of any benefits under this Agreement, you shall
execute a release of all legal claims against the Company related to your
employment on a form prepared by the Company (a “Release”). If you do not
execute a Release within the period set forth in the Release (which period shall
not be shorter than seven (7) days and shall not be longer than forty-five (45)
days), or if you are given the right to revoke such Release and you choose to
revoke such Release within the subsequent seven (7) day period, you will have no
right to receive any of the benefits described in Section 4 above.


     8.     Any successor to the Company as a result of the occurrence of a Change
of Control (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) or otherwise which succeeds to all or
substantially all of the Company’s business and/or assets shall assume the
obligations under this Agreement and agree 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.
For all purposes under this Agreement, the term “Company” shall include any
successor to the Company’s business and/or assets which executes and delivers
the assumption agreement described in this paragraph or which becomes bound by
the terms of this Agreement by operation of law.



          The terms of this Agreement and all of your rights hereunder shall
inure to the benefit of, and be enforceable by, your personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees or legatees.



     9.     This Agreement constitutes the sole agreement of the parties and
supersedes all negotiations and prior agreements with respect to the subject
matter hereof, i.e., the rights and responsibilities of you and the Company in
the event of certain terminations of your employment with the Company other than
a termination related to the occurrence of a Change of Control (which
termination is covered by the Change of Control Agreement). The Change of
Control Agreement and the Confidential Information and Invention Assignment
Agreement (the “Confidentiality Agreement”) between you and the Company remain
in full force and effect and are not modified by


 








 


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this Agreement. The benefits provided in this Agreement are
meant to be in lieu of any benefits to which you might
become entitled under the Change of Control Agreement and
eligibility to receive benefits under either this Agreement
or the Change of Control Agreement shall terminate your
rights to receive benefits under the other agreement.


     10.     Any term of this Agreement may be amended or
waived only with the written consent of the parties.


     11.     Any notice required or permitted by this Agreement
will be in writing and will be deemed sufficient upon
receipt, when delivered personally, by facsimile or email,
or by a nationally-recognized delivery service (such as
Federal Express or Express Mail), or 72 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.


     12.     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.


     13.     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, modified or replaced, and
(iii) the balance of the Agreement will be enforceable in
accordance with its terms. Specifically with respect to the
covenants contained in Section 16 and 17 below, the parties
intend that such covenants shall be construed as a series
of separate covenants, one for each city, county, state,
nation and other political subdivision of the Business Area
(as defined in Section 17 below). If, in any judicial,
mediation or arbitration proceeding, a court, mediator or
arbitrator shall refuse to enforce any of the separate
covenants (or any part thereof) deemed included in such
Sections, then any such unenforceable covenant (or such
part) shall be deemed eliminated from this Agreement for
the purpose of those proceedings to the extent necessary to
permit the remaining separate covenants (or portions
thereof) to be enforced by such court, mediator or
arbitrator. It is the intent of the parties that the
covenants set forth in this Agreement be enforced to the
maximum degree permitted by applicable law. Further, in the
event that the any of the provisions of Sections 16 or 17
should be deemed to exceed the scope, time or geographic
limitations of applicable law regarding covenants not to
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then such provisions shall be automatically reformed to the
maximum scope, time or geographic limitations, as the case may
be, permitted by applicable laws.


     14.     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 mutually agreed upon by the
parties. 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. Except as set
forth in Section 13, the arbitrator shall not have authority to
modify the terms of this Agreement. The Company shall pay the
costs of the arbitration proceeding; provided however that each
party shall, unless otherwise determined by the arbitrator, bear
its or her own attorneys’ fees and expenses. 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.


     15.     You acknowledge that, in executing this Agreement, you
have had the opportunity to seek the advice of independent legal
counsel, that you have done so or knowingly declined to do so,
and you have read and understood all of the terms and provisions
of this Agreement.


     16.     You agree that during the term of your employment (and
any concurrent or subsequent consulting relationship with the
Company, and for a period of eighteen (18) months immediately
thereafter, you will not either directly or indirectly solicit,
induce, recruit or encourage any of the Company’s employees or
consultants to terminate their relationship with the Company, or
attempt to solicit, induce, recruit, encourage or take away
employees or consultants of the Company, either for your own
benefit or for the benefit of any other person or entity.
Further, during your employment (and any concurrent or subsequent
consulting relationship) with the Company and at any time
thereafter, you will not use any confidential or proprietary
information of the Company to attempt to negatively influence any
of the Company’s clients or customers from purchasing Company
products or services or to solicit or influence any client,
customer or other person either directly or indirectly, to direct
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purchase of products and/or services to any person, firm, corporation,
institution or other entity in competition with the business of the Company.
You acknowledge that upon your breach of this Section 16, the Company would
sustain irreparable harm from such breach, and, therefore, you agree that in
addition to any other remedies which the Company may have under this Agreement
or otherwise, the Company’s obligations to provide the benefits to you as
described in Section 4 above shall immediately terminate, you shall have no
claim to receive such benefits from the Company, the Release referred to in
Section 7 above shall remain in all respects valid and binding, and the Company
shall be entitled to obtain equitable relief, including specific performance
and injunctions, restraining you from committing or continuing any such
violation of this Section 16.


     17.     If your employment is terminated under the circumstances set forth in
Section 4 above, you agree that for a period of eighteen (18) months
immediately following the termination of your employment, you will not (i)
enter into or participate in the business of developing, marketing and
servicing hardware and software related to contact centers, including those
involving voice-over IP, traditional telephony, e-mail, voicemail, Web, fax,
and wireless business communications of the type developed, marketed or
serviced or being developed or proposed to be developed, marketed or serviced
by the Company as of the date of termination of employment (the “Restricted
Business”) or (ii) directly or indirectly own, manage, operate, control or
otherwise engage or participate in, or become connected as an owner, partner,
principal, creditor, salesman, guarantor, advisor, member of the board of
directors of, employee of or consultant in any entity or business, or any
division, group or other subset of any business, engaged in the Restricted
Business. Subject to Section 13 above, the restrictions set forth in this
Section 17 shall apply worldwide (the “Business Area”).



          (a) You acknowledge that upon your breach of this Section 17, the
Company would sustain irreparable harm from such breach, and, therefore, you
agree that in addition to any other remedies which the Company may have under
this Agreement or otherwise, the Company’s obligations to provide the benefits
to you as described in Section 4 above shall immediately terminate, you shall
have no claim to receive such benefits from the Company, the Release referred
to in Section 7 above shall remain in all respects valid and binding, and the
Company shall be entitled to obtain equitable relief, including specific
performance and injunctions, restraining you from committing or continuing any
such violation of this Section 17.




          (b) You agree that you will be able to earn a livelihood without
violating the restrictions set forth in this Section 17. You agree that




 










 




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the character, duration and geographical scope of Section 17 are reasonable in
light of the circumstances as they exist on the effective date of this
Agreement.


     18.     You agree not to enter into any agreement, either written or oral,
in conflict with the provisions of this Agreement. You certify that, to the best
of your information and belief, you are not a party to any other agreement that
will interfere with your full compliance with this Agreement.


     19.     This Agreement (i) shall survive your employment by the Company
(ii) does not in any way restrict your right or the right of the Company to
terminate your employment, (iii) inures to the benefit of successors and
assignees of the Company, and (iv) is binding upon your heirs and legal
representatives.


     20.     You certify an acknowledge that you have carefully read all of
the provisions of the agreement and that you understand and will fully and
faithfully comply with such provisions.


 








 


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     Please indicate your agreement with the above terms by signing below.



	 	 	 	 	 
	 	 	Sincerely,
	 	 	 	 	 
	 	 	Aspect Communications Corporation
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	 
	 	 	
Date:	 	 
	 	 	 	 	

	 	 	 	 	 
	 	 	
Title:	 	 
	 	 	 	 	 
	 	 	
Address:
	 	1310 Ridder Park Drive

San Jose, CA 95131
	 	 	 	 	 
	 	 	Facsimile Number: (408) 325-2442



     My signature below signifies my agreement with the above terms.



	 	 	 
	By:	 	 
	 	 	


	 	 	 
	Address:	 	 
	 	 	


	 	 	 
	Date: