Exhibit 99.1
SUM-100 | |||||||||
SUMMONS | FOR COURT USE ONLY | ||||||||
(CITACION JUDICIAL) | (SOLO PARA USO DE LA CORTE) | ||||||||
NOTICE TO DEFENDANT: | |||||||||
(AVISO AL DEMANDADO): | |||||||||
Aspect Communications Corporation, Gary E. Barnett, Barry M. Ariko, Norman A. Fogelsong, A. Barry Rand, Robert F. Smith, Thomas Weatherford, and David B. Wright | |||||||||
YOU ARE BEING SUED BY PLAINTIFF: | |||||||||
(LO ESTÁ DEMANDANDO EL DEMANDANTE): | |||||||||
Mary Sheridan | |||||||||
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. | |||||||||
Tiene 30 DÍAS DE CALENDARIO después de que le entreguen esta citación y papeles legales para presentar una respuesta por escrito en esta corte y hacer que se entregue una copia al demandante. Una carta o una llamada telefónica no lo protegen. Su respuesta por escrito tiene que estar en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usar para su respuesta. Puede encontrar estos formularios de la corte y más información en el Centro de Ayuda de las Cortes de California (www.courtinfo.ca.gov/selfhelp/espanol/), en la biblioteca de leyes de su condado o en la corte que le quede más cerca. Si no puede pagar la cuota de presentación, pida al secretario de la corte que le dé un formulario de exención de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le podrá quitar su sueldo, dinero y bienes sin más advertencia. Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de remisión a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services, (www.lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.courtinfo.ca.gov/selfhelp/espanol/) o poniéndose en contacto con la corte o el colegio de abogados locales. | |||||||||
CASE NUMBER: 105CV045093 | |||||||||
The name and address of the court is: | (Número del Caso): | ||||||||
(El nombre y dirección de la corte es): | 105CV045093 | ||||||||
Santa Clara Superior Court, Civil Division
191 North First Street
San Jose, CA 95113
Telephone: 408/299-2964
The name, address, and telephone number of plaintiff’s attorney, or plaintiff without an attorney, is:
(El nombre, la dirección y el número de teléfono del abogado del demandante, o del demandante que no tiene abogado, es):
Francis M. Gregorek, Wolf Haldenstein Adler Freeman & Herz LLP, 750 B Street, Suite 2770, San Diego, CA 92101, Telehphone: 619-239-4599
DATE: JUL 14, 2005 | Clerk, by; | /s/ Y. Carrejo | Deputy | |
(Fecha) | (Secretario | (Adjunto) | ||
(For proof of service of this summons, use Proof of Service of Summons (form POS-010).)
(Para prueba de entrega de esta citatión use el formulario Proof of Service of Summons, (POS-010)).
NOTICE TO THE PERSON SERVED:You are served | ||||||||||||||||||
[SEAL] | 1. | o | as an individual defendant. | |||||||||||||||
2. | þ | as the person sued under the fictitious name of(specify): | ||||||||||||||||
Aspect Communications Corporation | ||||||||||||||||||
3. | þ | on behalf of(specify): | ||||||||||||||||
under: | þ | CCP 416.10 (corporation) | o | CCP 416.60 (minor) | ||||||||||||||
o | CCP 416.20 (defunct corporation) | o | CCP 416.70 (conservatee) | |||||||||||||||
o | CCP 416.40 (association or partnership) | o | CCP 416.90 (authorized person) | |||||||||||||||
o | other(specify): | |||||||||||||||||
4. | o | by personal delivery on(date): | ||||||||||||||||
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Form Adopted for Mandatory Use | Code of Civil Procedure §§ 412.20,465 | |||||
Judicial Council of California | SUMMONS | American LegalNet, Inc. | ||||
Sum-100 [Rev. January 1, 2004] | www USCourtForms.com | |||||
Wolf Halderstein Adler Freeman & Herzllp
Francis M. Gregorek
Betsy C. Manifold
Francis A Bottini, Jr.
Rachele R. Rickert
Symphony Towers
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
Attorneys for Plaintiff Mary Sheridan
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MARY SHERIDAN, | Case No.: 105CV045093 | ||
Plaintiff, | CLASS ACTION COMPLAINT | ||
v. | |||
ASPECT COMMUNICATIONS CORPORATION, GARY E. BARNETT, BARRY M. ARIKO, NORMAN A. FOGELSONG, A. BARRY RAND, ROBERT F. SMITH, THOMAS WEATHERFORD, and DAVID B. WRIGHT, | |||
Defendants. | |||
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Plaintiff, by her attorneys, alleges upon personal knowledge as to her own acts and upon information and belief premised on the investigation of her counsel as to all other matters, as follows:
NATURE OF ACTION
1. Plaintiff purchased or acquired 200 shares of the common stock of Aspect Communications Corporation (“Aspect” or the “Company”) prior to the events giving rise to the allegations herein, and continues to hold such shares.
2. This action arises from breaches of fiduciary duties in connection with the acquisition of Aspect (the “Transaction”) by Concerto Software, Inc. (“Concerto”). Defendants prematurely entered into a merger agreement with Concerto without fulfilling their most basic obligation to conduct a full and fair sale process to ensure that the Aspect shareholders received the highest value reasonably available for their shares of Aspect common stock. By their actions, Aspect and its directors have deprived Aspect’s stockholders of a fair process for the sale of their shares and the best possible value for those shares. Plaintiff alleges that she and other public shareholders of Aspect common stock are entitled to enjoin the proposed Transaction or, alternatively, to recover damages in the event that the Transaction is consummated. The proposed Transaction is the result of an unfair process, results in the denial to shareholders of important information regarding the value of their shares of Aspect, and does not provide for adequate value for Aspect’s shareholders. The decision of the Director Defendants (as defined below), who constitute Aspect’s Board of Directors to pursue the proposed Transaction constitutes a breach of their fiduciary duties to plaintiff and other Aspect shareholders.
JURISDICTION AND VENUE
3. This Court has jurisdiction over the causes of action asserted herein pursuant to the California Constitution, Article VI, § 10, because this case is a cause not given by statute to other trial courts. The amount in controversy exceeds the jurisdictional minimum of this Court.
4. This Court has jurisdiction over defendant Aspect because its corporate
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headquarters are located at 1320 Ridder Park Drive, San Jose, California. This Court has jurisdiction over the individual defendants because many of them are California citizens, own property in California, and/or reside in California.
5. Venue is proper in this Court because the conduct at issue took place and had an effect in this County.
PARTIES
6. Plaintiff Mary Sheridan is and, at all relevant times, has been the owner of shares of Aspect common stock.
7. Defendant Aspect Communications Corporation (“Aspect” or the “Company”) is a corporation organized and existing under the laws of the State of California. Aspect maintains its principal offices at 1320 Ridder Park Drive, San Jose, California 95131-2312. Aspect, is a leading provider of contact center solutions and services that enable businesses to manage and optimize customer communications. Aspect’s global customer base includes more than two-thirds of the Fortune 50 and corporations in a range of industries, including transportation, financial services, insurance, telecommunications, retail and outsourcing, as well as large government agencies. The Company’s leadership is based on two decades of expertise.
8. As of July 5, 2005, Aspect had approximately 61.3 million shares of ordinary shares outstanding.
9. Defendant Gary E. Barnett has been a director since June 2004 and is President and Chief Executive Officer of Aspect. If the Transaction is completed, Mr. Barnett will receive his regular base salary of $430,000 for up to 18 months and 1.5 times the average of his actual bonus payments of 3209,000.
10. Defendant Barry M. Ariko is a board member of Aspect.
11. Defendant Norman A. Fogelsong is a board member of Aspect.
12. Defendant A. Barry Rand is a board member of Aspect. In August 2003, Mr. Rand was appointed Interim Chairman and continues to serve until a successor is appointed or elected.
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13. Defendant Robert F. Smith is a board member of Aspect. Mr. Smith is the Managing Principal Partner of Vista Equity Partners, which he founded in 2000. Vista is the Company’s largest single shareholder and owned 22 million shares as of February 28, 2005. These shares represent common stock currently issuable upon the conversion of 50,000 shares of Series B preferred stock, which is 100% of the authorized issued and outstanding shares of Series B preferred stock.
14. Defendant Thomas Weatherford is a board member of Aspect.
15 Defendant David B. Wright is a board member of Aspect.
16. The foregoing individual directors and board members of Aspect (collectively the “Director Defendants”) owe fiduciary duties to Aspect and its shareholders.
17. The individuals identified above are collectively referred to throughout this complaint as the “Director Defendants.”
18. The Director Defendants, by reason of their corporate directorship and/or executive positions, stand in a fiduciary position relative to the Company’s shareholders, which fiduciary relationship, at all tunes relevant herein, required the Director Defendants to exercise their best judgment, and to act in a prudent manner and in the best interests of the Company’s shareholders.
19. Each Director Defendant owed and owes Aspect and its public shareholders fiduciary duties and was and is required to further the best interests of Aspect and its public shareholders; undertake an adequate evaluation of the Company’s worth as to potential merger/acquisition candidates; maximize the financial recovery for Aspect shareholders; refrain from abusing their positions of control; refrain from favoring their own interests at the expense of Aspect and its shareholders; only consent to transactions that are in the financial interest of Aspect shareholders; and act in good faith in carrying out their obligations to shareholders with due care and information.
CLASS ACTION ALLEGATIONS
20. Plaintiff brings this case on her own behalf and as a class action, pursuant to CCP § 382. on behalf of all stockholders of the Company, except defendants herein and any
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person, firm, trust, corporation, or other entity related to or affiliated with any of the defendants who own shares of Aspect subject to the acquisition of Aspect by Concerto (the “Class”).
21. This action is properly maintainable as a class action.
22. The Class is so numerous that joinder of all members is impracticable. The Company has thousands of stockholders who are scattered throughout the United States. As of July 5, 2005, Aspect had 61.3 million shares of common stock outstanding.
23. There are questions of law and fact that are common to the Class and that predominate over questions affecting any individual Class member. The common questions include, inter alia, the following:
(a) Whether the Transaction as negotiated and structured denies shareholders information (particularly with respect to the value of their shares) necessary to make an informed decision whether to sell their shares;
(b) Whether the Director Defendants have breached their fiduciary duties owed by them to plaintiff and other members of the Class, including their duties of entire fairness, loyalty, due care, and full disclosure; and
(c) Whether plaintiff and the other members of the Class are being and will continue to be injured by the wrongful conduct alleged herein and, if so, what is the proper remedy and/or measure of damages.
24. Plaintiff is committed to prosecuting the action and has retained competent counsel experienced in litigation of this nature. Plaintiff’s claims are typical of the claims of the other members of the Class and plaintiff has the same interests as the other members of the Class. Plaintiff is an adequate representative of the Class.
25. The prosecution of separate actions by individual members of the Class would create the risk of inconsistent or varying adjudications with respect to individual members of the Class which would establish incompatible standards of conduct for defendants, or adjudications with respect to individual members of the Class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or
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Breach Of Fiduciary Duty
(Against The Director Defendants)
Breach Of Fiduciary Duty Of Candor
(Against The Director Defendants)
Dated: July 14, 2005 | Wolf Halderstein Adler Freeman & HerzLLP | |||
Francis M. Gregorek | ||||
Betsy C. Manifold | ||||
Francis A Bottini, Jr. | ||||
Rachele R. Rickert | ||||
By | /s/ Francis M. Gregorek | |||
Attorneys for Plaintiff Mary Sheridan |
![(FORM)](https://capedge.com/proxy/8-K/0000950134-05-014189/f10864f1086400.gif)
Francis M. Gregorek (144785) Wolf Haldenstein Adler Freeman a& Herz LLP 750 B Street, Suite 2770 San Diego, CA 92101 619/239-4599 619-234-4599 Plaintiff Mary Sheridan Santa Clara Civil Division, 191 North First Street San Jose, CA 95113 Sheridan v. Aspect Communications Corporation, et al.Unlimited Limited Counter Joinder 105CV045093 Auto (22) Uninsured motorist (46) Breach of contract/warranty (06) Collections (09) Insurance coverage (18) Other contract (37) Antitrust/Trade regulation (03) Construction defect (10) Mass tort (40) Securities litigation (28) Environmental /Toxic tort (30) Copyright 2003, American LegalNet, Inc. Asbestos (04) Product liability (24) Medical malpractice (45) Other PI/PD/WD (23) Wrongful eviction (33) Other real property (26) Business tort/unfair business practice (07) Civil rights (08) Defamation (13) Fraud (16) Intellectual property (19) Professional negligence (25) Other non-PI/PD/WD tort (35) Enforcement of judgment (20) Commercial (31) Residential (32) Drugs (38) RICO (27) Other complaint(not specified above)(42) Asset forfeiture (05) Petition re: arbitration award (11) Writ of mandate (02) Other judicial review (39) Partnership and corporate governance (21) Other petition(not specified above)(43) Wrongful termination (36) Other employment (15) is is not complex under rule 1800 of the California Rules of Court. If the case is complex, mark the Large number of separately represented parties Substantial amount of documentary evidence Large number of witnesses Coordination with related actions pending in one or more courts Substantial post-judgment judicial supervision in other counties, states or countries, or in a federal court monetary b. nonmonetary; declaratory or injunctive relief punitive is is not a class action suit. July 14, 2005 Francis M. GregorekCM-010 ATTORNEY OR PARTY WITHOUT ATTORNEY(Name, state bar number, and address):FOR COURT USE ONLY TELEPHONE NO.: FAX NO.: ATTORNEY FOR(Name):SUPERIOR COURT OF CALIFORNIA, COUNTY OF STREET ADDRESS: MAILING ADDRESS: CITY AND ZIP CODE: BRANCH NAME: CASE NAME:CIVIL CASE COVER SHEET Complex Case Designation CASE NUMBER: (Amount (Amount demanded demanded is exceeds $25,000) $25,000 or less) Filed with first appearance by defendant (Cal. Rules of Court, rule 1811) JUDGE: DEPT:All five (5) items below must be completed (see instructions on page 2). 1. Checkonebox below for the case type that best describes this case:Auto Tort Contract Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 1800-1812) Other PI/PD/WD (Personal Injury/Property Damage/Wrongful Death) Tort Real Property Eminent domain/Inverse condemnation (14)Non-PI/PD/WD (Other) Tort Insurance coverage claims arising from the above listed provisionally complex case types (41)Enforcement of Judgment Unlawful Detainer Miscellaneous Civil Complaint Judicial Review Miscellaneous Civil Petition Employment 2. This case factors requiring exceptional judicial management: a. d. b. Extensive motion practice raising difficult or novel issues that will be time-consuming to resolve e. c. f. 3. Type of remedies sought(check all that apply): a. c. 4. Number of causes of action(specify): 5. This case Date: (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY)•NOTICE Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate, Family, or Welfare and Institutions Code). (Cal. Rules of Court, rule 201. 8.) Failure to file may result in• sanctions.• File this cover sheet in addition to any cover sheet required by local court rule.• If this case is complex under rule 1800 et seq. of the California Rules of Court, you must serve a copy of this cover sheet onall other parties to the action or proceeding. Unless this is a complex case, this cover sheet will be used for statistical purposes only.Page 1 of 2 |
Form Adopted for Mandatory Use Judicial Council of California CM-010 [Rev. July 1, 2003] |
CIVIL CASE COVER SHEET American LegalNet, Inc. www.USCourtForms.com |
Cal. Rules of Court, rules 201.8, 1800-1812; Standards of Judicial Administration, § 19www.courtinfo.ca.gov |
CIVIL LAWSUIT NOTICE Superior Court of California, County of Santa Clara 191 N. First St., San Jose, CA 95113 | CASE NUMBER:105CV045093 |
READ THIS ENTIRE FORM | ||
1. | You must file awritten responseto the Complaint, in the clerk’s office of the Court, within30 days of the date theSummonsandComplaintwere served on you; | ||
2. | You must send a copy of your written response to the plaintiff; and | ||
3. | You must attend the first Case Management Conference. |
• | State Rules and Judicial Council Forms:www.courtinfo.ca.gov/formsandwww.courtinfo.ca.gov/rules | ||
• | Local Rules and Forms:www.sccsuperiorcourt.org/civil/rule1toc.htm | ||
• | Rose Printing, 49 N. First St., San Jose (408-293-8177) |
Date:NOV 8, 2005 | Time:10:00 am | Dept.:17C |
Date: | Time: | Dept.: |
Form CV-5012 | CIVIL LAWSUIT NOTICE | |||
Rev. 1/01/04 |
< | ADR can save time. A dispute can be resolved in a matter of months, or even weeks, while litigation can take years. | |
< | ADR can save money. Attorneys’ fees, court costs, and expert fees can be reduced or avoided altogether. | |
< | ADR provides more participation. Parties have more opportunities with ADR to express their interests and concerns, instead of focusing exclusively on legal rights. | |
< | ADR provides more control and flexibility. Parties can choose the ADR process that is most likely to bring a satisfactory resolution to their dispute. | |
< | ADR can reduce stress. ADR encourages cooperation and communication, while discouraging the adversarial atmosphere of litigation. Surveys of parties who have participated in an ADR process have found much greater satisfaction than with parties who have gone through litigation. |
< | Mediationis an informal, confidential process in which a neutral party (the mediator) assists the parties in understanding their own interests, the interests of the other parties, and the practical and legal realities they all face. The mediator then helps the parties to explore options and arrive at a mutually acceptable resolution of the dispute. The mediator does not decide the dispute. The parties do. | |
< | Mediation may be appropriate when: |
< | The parties want a nonadversary procedure | ||
< | The parties have a continuing business or personal relationship | ||
< | Communication problems are interfering with a resolution | ||
< | There is an emotional element involved | ||
< | The parties are interested in an injunction, consent decree, or other form of equitable relief |
< | Arbitrationis a normally informal process in which the neutral (the arbitrator) decides the dispute after hearing the evidence and arguments of the parties. The parties can agree to binding or non-binding arbitration. Binding arbitration is designed to give the parties a resolution of their dispute when they cannot |
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agree by themselves or with a mediator. If the arbitration is non-binding, any party can reject the arbitrators decision and request a trial. | ||
Arbitration may be appropriate when: |
< | The action is for personal injury, property damage, or breach of contract | ||
< | Only monetary damages are sought | ||
< | Witness testimony, under oath, is desired | ||
< | An advisory opinion is sought from an experienced litigator (if a non-binding arbitration) |
< | Neutral evaluationis an informal process in which a neutral party (the evaluator) reviews the case with counsel and gives a non-binding assessment of the strengths and weaknesses on each side and the likely outcome. The neutral can help parties to identify issues, prepare stipulations, and draft discovery plans. The parties may use the neutrals evaluation to discuss settlement. | |
< | Neutral evaluation may be appropriate when: |
< | The parties are far apart in their view of the law or value of the case | ||
< | The case involves a technical issue in which the evaluator has expertise | ||
< | Case planning assistance would be helpful and would save legal fees and costs | ||
< | The parties are interested in an injunction, consent decree, or other form of equitable relief |
< | Special masters and refereesare neutral parties who may be appointed by the court to obtain information or to make specific fact findings that may lead to a resolution of a dispute. | |
Special masters and referees can be particularly effective in complex cases with a number of parties, like construction disputes. | ||
< | Settlement conferencesare informal processes in which the neutral (a judge or an experienced attorney) meets with the parties or their attorneys, hears the facts of the dispute, and normally suggests a resolution that the parties may accept or use as a basis for further negotiations. | |
Settlement conferences can be effective when the authority or expertise of the judge or experienced attorney may help the parties reach a resolution. |
Contact: | ||
Santa Clara County Superior Court | Santa Clara County DRPA Coordinator | |
ADR Administrator | 408-792-2669 | |
408-882-2530 |
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