EXHIBIT 10.2
MUTUAL SEPARATION AGREEMENT
---------------------------
This Mutual Separation Agreement ("Agreement") is made between Genesys
Telecommunications Laboratories, Inc. ("Genesys") and John Metcalfe
("Employee").
RECITALS
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WHEREAS, Employee's status as an employee of the Company shall cease as of
October 14, 1998 (the "Separation Date"); and
WHEREAS, Employee and Genesys wish to conclude their employment
relationship in such a manner as to resolve any and all disputes that may exist
between them arising from facts or events occurring on or before the Separation
Date; and to preserve the existing goodwill between them; and
THEREFORE, in consideration for the promises and benefits described below,
Genesys and Employee agree as follows:
AGREEMENTS
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I. Agreements of Genesys
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A. Genesys shall engage Employee as an Independent Consultant for six (6)
calendar months commencing on the Separation Date pursuant to the terms of the
Independent Consulting Agreement attached hereto as Exhibit A, provided that
such engagement shall not take effect until this Agreement becomes effective
pursuant to Section III.G., below.
II. Agreement of Employee
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A. Association with Genesys
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1. Employee understands that because his employment with Genesys shall
cease on the Separation Date, Employee will not be eligible to participate
thereafter in any benefits provided by Genesys to its employees except that
Employee may elect to continue medical coverage for himself and his eligible
dependents pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA"). employee may continue coverage for the time period
available after the Separation Date, pursuant to COBRA.
2. Employee understands that his association with Genesys after the
Separation Date can only be as an Independent Consultant pursuant to the terms
of the Independent Consulting Agreement attached hereto as Exhibit A, and shall
not be that of an employee, agent, joint venturer or partner of Genesys.
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B. Release and Waiver of All Claims
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1. Employee agrees that he fully and forever discharges, waives and
releases any and all claims and causes of action of any kind that he now knows
he has or may in the future have against Genesys, including any of its officers,
directors, agents, employees, affiliates, representatives, predecessors,
successors and assigns, arising out of or relating in any way to his employment
with Genesys and the termination thereof, including but not limited to claims of
wrongful discharge, breach of contract, breach of the covenant of good faith and
fair dealing, violation of public policy, defamation, personal injury,
infliction of emotional distress, claims under Title VII of the 1964 Civil
Rights Act, as amended, the California Fair Employment and Housing Act, the
Equal Pay Act of 1963, the California Labor Code including Section 1197.5
thereof, the Age Discrimination in Employment Act of 1967, as amended, the
Americans with Disabilities Act, the Civil Rights Act of 1866, the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and any other
local, state and federal laws and regulations relating to employment, except any
claims Employee may have for unemployment and workers' compensation insurance
benefits.
Notwithstanding anything above, Employee does not waive his right to
indemnification from Genesys for conduct taken in the course and scope of his
employment to the fullest extent provided for in the California Labor Code, or
other indemnification agreement between Employee and Genesys. For the purposes
of determining the course and scope of employment, Employee will be deemed to
have been an employee until October 14, 1998. As a condition precedent to
maintaining any action against Employee arising from or relating to any event
occurring on, or before October 14, 1998, Genesys, and/or its directors,
officers and agents shall advance all attorneys fees and costs Employee requests
for the purpose of litigating/arbitrating Employee's case against Genesys,
and/or its directors, officers or agents. Genesys shall have a right to recover
the advanced fees and costs in the event a trier of fact determines Employee's
alleged conduct was not in the course and scope of his employment.
2. Employee agrees that the fully and forever waives any and all
rights and benefits conferred upon them by the provisions of Section 1542 of the
Civil Code of the State of California, which states as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
Employee agrees and understands that if, hereafter, he discovers facts different
from or in addition to those which he now knows or believes to be true, that the
waivers of this Agreement shall be and remain effective in all respects
notwithstanding such different or additional facts or the discovery thereof.
C. Confidential Information & Genesys Employees
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1. Employees shall remain bound by, and as set forth in, the Genesys
Telecommunications Laboratories Confidential Information and Invention
Assignment Agreement
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signed by Employee on June 9, 1997, a true and correct copy of which is attached
as Exhibit B hereto. The non-solicitation provision, however, is superseded by
IIC3 below.
2. Employee shall return to Genesys on the Separation Date, all Company
Information, including but not limited to customer lists and other customer
information, notebooks, notes, manuals, memoranda, records, diagrams,
blueprints, bulletins, formulas, reports, business and operating plans, computer
programs, or other data or memorializations of any kind, as well as any Genesys
property or equipment (including, without limitation, security badges,
[computers, ] phones, charge cards, etc.), that Employee has in his possession
or under his control. Employee further agrees and understands that Employee is
not entitled or authorized to keep any portions, summaries or copies of Company
Information, and that Employee is under a continuing obligation to keep all
Company Information confidential and not to disclose it to any third party in
the future. Employee understands that the term "Company Information" includes,
but is not limited, the following:
. Trade secret, information, matter or thing of a confidential, private
or secret nature, connected with the actual or anticipated products,
research, development, financials, operation or business of Genesys or
its customers, including information received from third parties under
confidential conditions; and
. Other technical, scientific, marketing, business, product development
or financial information, the use or disclosure of which might
reasonably be determined to be contrary to the interests of Genesys.
3. During the term of the Independent Consulting Agreement, and for one
year thereafter, Employee shall not solicit any employee to leave Genesys'
employ.
4. Employee hereby agrees that he will not, without compulsion of legal
process, disclose to any third party the fact of this Agreement or any the terms
of this Agreement, including the amounts referred to herein, either by specific
dollar amounts or by number of "figures" or otherwise, except that he may
disclose such information to his spouse and to his attorneys or accountants but
with respect to the latter, only to the extent such disclosure is necessary to
effect the purposes for which Employee has consulted such attorneys or
accountants. Employee agrees that in connection with any disclosure permitted
hereunder, Employee shall cause such third party to whom disclosure has been
made, including his spouse, to agree to comply with this covenant of
confidentiality and non-disclosure, such breach shall be deemed to have been
committed by Employee. Employee understands that nothing contained herein shall
preclude him from acknowledging that he is serving as a Consultant to Genesys.
5. Employee agrees and understands that the promises and agreements of
Section II.C of this Agreement are a material inducement to Genesys to engage
Employee as a Consultant after the Separation Date, and to provide Employee with
the benefits provided by this Agreement and that, for the breach thereof,
Genesys will be entitled to pursue its legal and equitable remedies against
Employee, including, without limitation, the right to terminate the Independent
Consulting Agreement and benefits provided thereunder as well as the benefits
provided by this Agreement and/or seek injunctive relief, provided, however,
this Agreement will
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remain in full force and effect. In the event Genesys terminates the benefits
set forth in this Agreement pursuant to this paragraph, and a trier of fact
thereafter determines that Employee did not breach this Agreement, then Genesys
shall pay Consultant three times the expenses, damages, and attorneys fees
incurred while defending himself, in addition to whatever other relief the trier
of fact awards.
II. Mutual Acknowledgments and Agreements
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A. Stock Matters
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1. As of the Separation Date, the status of Employee's outstanding
stock options to purchase shares of Genesys common stock (the "Options") is as
follows:
Shares Vested and Shares Vested and
Date of Shares Subject Exercisable as of Exercisable as of
Grant Type* to Grant Exercise Price October 14, 1998 April 14, 1999
----------- ---------- --------------- --------------- ----------------- -----------------
6/13/97 ISO 26,664 15.00 (less $2.00 5,925 8,888
bonus per share on
exercise)
6/13/97 NQ 223,336 Same as above 77,408 105,695
* ISO = Incentive Stock Option
NQ = Non-Qualified Stock Option
Pursuant to the terms of the existing stock option agreements ("Option
Agreements") for the Options and the provisions of the Genesys 1997 Stock
Incentive Plan (the "Plan") to which Employee's Options are subject, and
Employee's offer letter, each of the Options may be exercised at any time within
thirty (30) days following the date on which Employee ceases to render services
to Genesys, either in Employee's capacity as an employee or as a consultant
pursuant to the Independent Consulting Agreement, with respect to the number of
shares for which such Option is, at the time of Employee's cessation of service,
exercisable and vested, including, without limitation, the $2.00 exercise bonus
awarded at the time Employee exercises his options. The above table illustrates
the maximum number of shares of Common Stock in which Employee will be vested as
of April 14, 1999 in the event he/she remains in service pursuant to the
Independent Consulting Agreement through such date. However, to the extent the
Options are incentive stock options within the meaning of Section 422 of the
Internal Revenue Code, such options will cease to qualify for favorable tax
treatment as incentive stock options if they are exercised on a date later than
three (3) months following the Separation Date. Accordingly, to the extent
Employee's incentive stock options are not exercised on or before January 14,
1999, the incentive stock options will be treated as non-qualified or non-
statutory stock options after such date, and the exercise of those options will
be subject to Employee's satisfaction of all tax withholding requirements
applicable to compensation income employee will recognize at the time of each
such post-January 14, 1999 exercise. The Options will terminate and cease to be
exercisable with respect to any option shares which are unvested as of the
effective date of Employee's cessation of service pursuant to the Independent
Consulting Agreement. Employee's stock option agreements shall continue to
remain in effect while
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Employee continues to be an employee of Genesys and during the term of the
Independent Consulting Agreement attached as Exhibit A to this Agreement.
2. On the date of business of Employee's October 14, 1998
termination date as an employee, Employee immediately shall cease to participate
in the Genesys Employee Stock Purchase Plan ("ESPP"). Employee will receive a
refund of the amount, if any, Employee has contributed to the ESPP during the
current purchase period and Employee will not be entitled to purchase any more
stock through the ESPP.
3. Employee shall be permitted to purchase from Genesys at Genesys'
cost, and at Employee's sole discretion, Employee's phone and personal computer.
B. Entire Agreement
----------------
The parties to this Agreement agree that it contains the entire
agreement between them with respect to any matters referred to in this
Agreement, and supersedes any and all previous oral or written agreements. The
parties to this Agreement further agree that the Agreement may not be modified
or changed, in whole or part, except by another written agreement signed by
Employee and Genesys' President.
C. No Disparagement or Admission
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1. Employee and Genesys each hereby agree that they will not make any
negative or disparaging statements or comments about the other. Notwithstanding
anything written above, this provision shall not hinder Employee's duties and
responsibilities to Employee's future employers. Genesys further agrees that it
will respond to inquiries about Employee from prospective employers of Employee
consistent with its policies then in effect and shall provide no additional
information without express written consent of Employee. Employee consents until
further notice to have all inquiries directed to Genesys board of director Greg
Shenkman.
2. The parties to this Agreement agree that neither the fact nor any
aspect of this Agreement is intended, should be deemed, or should be construed
at any time to be an admission of liability or wrongdoing by either the Employee
or Genesys.
D. Severability
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The parties to this Agreement agree that if any provision, or portion
of a provision, of this Agreement is, for any reason, held to be unenforceable,
that such unenforceability will not affect any other provision, or portion of a
provision, of this Agreement and that this Agreement shall be construed as if
such unenforceable provision or portion had never been contained herein.
E. Dispute Resolution
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The parties to this Agreement agree that any and all disputes arising
under or regarding this Agreement and/or the Plan (to the extent such dispute
arising under the Plan cannot otherwise be resolved through the use of the
claims procedure set forth in the Plan) shall
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be settled by final and binding arbitration in San Francisco, California, in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association then in effect, and judgment upon the award
rendered may be entered in any court with jurisdiction thereof. If any action at
law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
and costs, in addition to any other relief to which the party may be entitled.
F. Time to Consider & Sign Agreement
---------------------------------
The parties to this Agreement agree that Employee may have twenty-one
(21) days after receipt of this Agreement within which to review and consider,
discuss with an attorney of his own choosing, and decide whether or not to sign
this Agreement. However, none of the benefits provided by this Agreement will
be provided to Employee until this Agreement becomes effective pursuant to
Section III.G., below; and no Independent Consulting Agreement shall become
effective until this Agreement becomes effective pursuant to Section III.G.,
below.
G. Opportunity to Revoke & Effective Date of Agreement
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The parties to this Agreement agree that it will not become effective
until expiration of the seventh (7th) day after Employee signs it, provided that
Employee does not revoke it during those seven (7) days; and that for a period
of seven (7) days after Employee signs this Agreement, he may revoke it.
Employee agrees and understands that if he decides to revoke this Agreement
after he signs it, he can do so only by delivering a written notification of his
revocation, no later than the seventh day after he signed this Agreement, to:
Genesys Telecommunications Laboratories, Inc.
1155 Market Street, 11th Floor
San Francisco, CA 94013
Attn: Director of Legal Affairs
If Employee does not sign this Agreement, or if he signs it and then chooses to
revoke it within seven (7) days after he signed it, he will not be entitled to
not be provided any of benefits of this Agreement. Employee understands that
the benefits provided by this Agreement will not be received by Employee until
this Agreement becomes effective.
H. Attachments to Agreement
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Genesys and Employee Acknowledge that attached to this Agreement are
the following documents:
1. Independent Consulting Agreement as Exhibit A.
2. Employee Agreement: Proprietary Information and Inventions signed
by Employee as Exhibit B.
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I. Fax Signatures & Counterparts
-----------------------------
Fax signatures to this Agreement shall be considered binding original
signatures, and this Agreement may be executed in counterparts, each of which
shall be considered together as one original.
IN WITNESS, the parties have executed this Manual Separation Agreement as
of the date set forth below.
Date: September 11, 1998 Employee:
/s/ John Metcalfe
_____________________________________
John Metcalfe
Date: September 11, 1998 Genesys Telecommunications Laboratories, Inc.:
By: /s/ Michael J. McCloskey
__________________________________
Michael J. McCloskey
President
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EXHIBIT A
INDEPENDENT CONSULTING AGREEMENT
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The following confirms the agreement ("IC Agreement") between John Metcalfe
("Consultant") and Genesys Telecommunications Laboratories, Inc. ("Genesys")
with respect to the provision of consulting services by Consultant to Genesys.
1. Term of Agreement. The term of this IC Agreement shall be six
-----------------
(6) calendar months ("Consulting Period"). The Consulting Period shall commence
on October 15, 1998 ("Effective Date"), provided that a Mutual Separation
Agreement between Genesys and Consultant is effective. This IC Agreement shall
terminate on the close of business on April 14, 1999 or an earlier date pursuant
to Section 11 of this IC Agreement ("Termination Date").
2. Independent Contractor Status. It is the express intention of the
-----------------------------
parties to this IC Agreement that the Consultant is an independent contractor,
and is not an employee, agent, joint venturer or partner of Genesys. Nothing in
this IC Agreement shall be interpreted or construed as creating or establishing
an employment relationship between Genesys and the Consultant.
3. Services. Consultant agrees to provide consulting services
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("Services") to Genesys during the Consulting Period which shall be those that
Genesys requests of Consultant from time-to-time by and through Genesys'
President or his designees. Consultant shall be available to perform such
Services for up to twenty-four (24) hours per week during the Consulting Period.
The time and dates in which Consultant's services are provided are at the
reasonable discretion of the Employee. The Services to be provided by Consultant
will consist of working closely with the President to transition all matters
previously handled by Consultant, providing advice on marketing and strategic
matters. Such services include:
. That you effect a smooth transition of all business related
matters to your manager or replacement, as designated by
Genesys;
. That you be available to provide Services in person, rather
than only by telephone or written correspondence, for the first
month of this IC Agreement;
. That you be available via telephone for the entire term of this
IC Agreement.
4. Services to other Persons/Entities. The parties to this IC
----------------------------------
Agreement understand and agree that the Consultant may, and probably will,
perform services for other persons or entities during the Consulting Period.
However, Consultant agrees that during the term of this IC Agreement he will not
provide to GeoTel Communications Corporation, Northern Telecom, Nabnasset
Corporation or Melita Corporation without the prior written consent of Genesys,
which consent will not be unreasonably withheld.
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5. Employment of Assistants. Should the Consultant, in his sole
------------------------
discretion, deem it necessary to employ assistants to aid him in the performance
of the Services, the parties agree that Genesys will not direct, supervise, or
control in any way such assistants to the Consultant in their performance of
Services. The parties further agree that such assistants are employed solely by
the Consultant, and that he alone is responsible for providing workers'
compensation insurance for his employees, for paying the salaries and wages of
his employees, and for ensuring that all required tax withholdings are made.
Consultant further agrees and warrants that he shall maintain workers'
compensation insurance coverage for his employees and acknowledges that he alone
has responsibility for such coverage.
6. Reporting to Genesys' Facilities. Consultant is not required to
--------------------------------
report to work at any facility of Genesys or during any particular work hours.
Rather, Consultant is free to report or not report to any of Genesys' facilities
as he sees fit and as necessary to provide Services to Genesys. When Consultant
does visit any of Genesys' facilities, he will be required to sign in and be
issued a temporary identification badge like any other non-employee visitor to a
Genesys facility.
7. Compensation. For the duration of the consulting period, Consultant
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shall be paid $15,000 per month, and shall be permitted to continue vesting in
restricted shares and stock options that were purchased by Consultant or granted
to Consultant in connection with his former employment with Genesys (including,
without limitation, the $2 bonus per share awarded at the time of exercise
pursuant to the offer letter given Consultant before Consultant became a Genesys
employee). Genesys shall also pay Consultant's COBRA premiums directly to the
COBRA provider of up to $366.00 per month for medical benefits and $56.21 per
month for dental benefits during the term of this IC Agreement. The foregoing
is Consultant's sole compensation for rendering Services to Genesys. The
parties agree that Genesys is not responsible to reimburse any costs or expenses
incurred by Consultant in performing the Services but Consultant need not take
any action requiring that he incur expenses until Genesys has agreed to
reimburse him for those expenses. Consultant's stock option agreements shall
continue to remain in effect during the term of this Independent Consulting
Agreement, including without limitation, provisions relating to a change of
control of Genesys.
Consultant will be responsible for any and all taxes due on all
benefits provided by Genesys under this IC Agreement, and if any tax authority
imposes any tax, interest or penalty liability on Genesys for failing to
withhold from any payment made by Genesys under this IC Agreement, then
Consultant will indemnify Genesys for such tax, interest or penalty amounts.
8. Obligations re: Confidential Information.
----------------------------------------
a. "Confidential Information" means any information, technical data,
or know-how including, but not limited to, Genesys' research, products, product
features, software, services, development, inventions, processes, designs,
drawings, engineering, marketing plans, customers, prospective customers,
finances, employee information, organizational structure information, disclosed
by Genesys, either directly or indirectly, in writing, orally or by drawings or
inspection of equipment or facilities. Confidential Information does not include
information, technical data or know-how which (A) is in the Consultant's
possession at the time of disclosure as evidenced by the Consultant's files and
records prior to
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the earliest time of Consultant's interaction with Genesys, as either an
employee or consultant of Genesys or otherwise; or (B) before or after it has
been disclosed to the Consultant, is part of the public knowledge of literature,
not as a result of any action or inaction of the Consultant or unauthorized
disclosure by any other party; or (C) is approved for release to the general
public by written authorization of Genesys.
b. The Consultant agrees not to use Confidential Information for its
own use, for the use of any other company, individual or entity, or for any
purpose except to perform the specific assigned duties for Genesys. The
Consultant agrees not to use Genesys' name or logo in any advertising nor as a
reference for any promotional purposes without the prior written consent of
Genesys. The Consultant will not present themselves as employees or authorized
representatives of Genesys', except as independent consultants.
c. The Consultant agrees not to disclose Genesys' Confidential
Information to any third party. The Consultant agrees that is shall protect the
confidentiality of all Confidential Information and take all necessary steps to
prevent disclosure to or misuse of the Confidential Information and to prevent
it from falling into the public domain or the possession of any unauthorized
party. The Consultant agrees that during and after the term of this Agreement is
shall not solicit or accept Confidential Information, such as lists of
employees, customers, telephone numbers, or organizational charts, from current
or prior employees, temporary or contract employees, vendors, or customers of
Genesys.
d. The Consultant agrees not to use Genesys' name or logo in any
advertising nor as a reference for any promotional purposes without the prior
written consent of Genesys.
e. Because of the unique and proprietary nature of Confidential
Information, the Consultant acknowledges that the breach of any of its
obligations under this provision is likely to cause or threaten irreparable harm
to Genesys and, accordingly, the Consultant agrees that in such event, any
remedies at law for a breach will be inadequate and therefore Genesys shall be
entitled to seek equitable relief to protect its interests, including but not
limited to preliminary and permanent injunctive relief, as well as money
damages. Nothing stated herein shall be construed to limit any other remedies
available to Genesys. In the event Genesys seeks equitable relief pursuant to
this section, and a trier of fact determines that such relief is not warranted,
Genesys shall pay Consultant three times the expenses, damages, and attorneys'
fees incurred while defending himself, in addition to whatever other relief the
trier of fact awards.
9. Non-solicitation of Genesys Employees. During the Consulting Period
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and for one year thereafter, Consultant shall not solicit any employee of
Genesys to leave Genesys for any reason.
10. Earlier Termination of I C Agreement. This IC Agreement may be
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terminated:
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a. by the Consultant at any time prior to the Termination Date by
giving thirty (30) days' written notice of termination which may be given at any
time for any reason, with or without cause; or
b. by Genesys at any time prior to the Termination Date for the
breach by Consultant of any obligation of sections 4, 8 or 9 of this IC
Agreement.
11. Enforceability of IC Agreement. Consultant agrees that any dispute
------------------------------
in the meaning, effect or validity of this IC Agreement shall be resolved in
accordance with the laws of the State of California without regard to the
conflict of laws provision thereof. Consultant further agrees that if one of
more provisions of this IC Agreement are held to be unenforceable under
applicable California law, such provision(s) shall be excluded from this IC
Agreement and the balance of the IC Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
12. Assignment. This IC Agreement shall not be assignable by either the
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Consultant or Genesys without the express written consent of the other party.
13. Dispute Resolution. Any controversy between the parties hereto
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involving the construction or application of any terms, covenants, or conditions
of this IC Agreement or any claim arising out of or relation to this IC
Agreement will be submitted to and be settled by final and binding arbitration
in San Francisco, California, in accordance with the rules of the American
Arbitration Association then in effect, and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof. If any
action at law or in equity is necessary to enforce or interpret the terms of
this IC Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees and costs in addition to any other relief to which the party may
be entitled.
14. Entire Agreements. This IC Agreement contains the entire
-----------------
understandings and agreements of the parties regarding its subject matters and
can only be modified by a subsequent written agreement executed by the
Consultant and Genesys' President.
15. Notices. All notices required or given pursuant to this IC Agreement
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shall be addressed to Genesys or Consultant at the designated addresses shown
below by registered mail, special delivery, or by certified courier service:
To Genesys:
-----------
Genesys Telecommunications Laboratories, Inc.
1155 Market Street, 11th Floor
San Francisco, CA 94103
Attn: Director of Legal Affairs
To Consultant:
--------------
John Metcalfe
12933 Tripoli Court
Los Altos Hills, CA 94022
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Fax signatures to this IC Agreement shall be considered binding original
signatures, and this IC Agreement may be executed in counterparts, each of which
shall be considered together as one original.
IN WITNESS, the parties have executed this Independent Consulting Agreement
to be effective as of the date set forth above.
CONSULTANT:
Dated: 11 September 1998 ____________________________________________
John Metcalfe
Genesys Telecommunications Laboratories, Inc.
Dated: 11 September 1998 By:_________________________________________
Michael J. McCloskey
President
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