EXHIBIT 10.4
EMPLOYMENT AND SEVERANCE AGREEMENT
This Employment and Severance Agreement (this "Agreement") has been entered
into, effective as of December 11, 1998, between GENESYS TELECOMMUNICATIONS
LABORATORIES, INC., a California corporation (the "Company"), and MICHAEL J.
MCCLOSKEY ("Executive") to provide for the employment of Executive on the terms
and conditions set forth herein.
WHEREAS, Executive currently serves as the President and Chief Financial
Officer of the Company;
WHEREAS, the Company wishes to assure itself of the continued employment
efforts of Executive for the period provided in this Agreement, and Executive is
willing to continue to serve in the employ of the Company on a full-time basis
for said period upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
intending to be legally bound, the Company and Executive agree as follows:
1. Employment. The Company hereby employs Executive, and Executive hereby
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accepts such employment by the Company, upon the terms and conditions herein
provided.
2. Term of Employment. Executive's employment with the Company pursuant to
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this Agreement shall commence on December 11, 1998 and shall continue through
the earlier to occur of (i) June 30, 1999 (the "Final Termination Date") or (ii)
the date on which the Company hires one or more individuals who individually or
collectively fulfill the responsibilities of the positions of (A) vice
president-finance and chief financial officer and (B) vice president-worldwide
sales, or (iii) the date on which such employment is otherwise terminated. The
period during which this Agreement continues in effect shall constitute the
"Employment Period".
3. Positions and Responsibilities.
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(a) Position. During the Employment Period, Executive shall serve as the
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Company's President, reporting directly to the Chief Executive Officer
("CEO") of the Company.
(b) Duties. During the Employment Period, and subject to the control of the
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CEO, Executive shall have active management and supervision over the
operations and affairs of the Company and shall perform such other
executive and/or administrative duties consistent with the office of
President as from time to time may be assigned to Executive by the CEO, but
subject to the conditions in this Agreement. During the Employment Period,
Executive shall devote substantially Executive's full business time and
attention to, and exert Executive's best efforts in, the performance of
Executive's duties hereunder, so as to promote the business of the Company.
Executive's principal place of business shall be at the Company's corporate
offices in San Francisco, California.
4. Compensation. For all services rendered by Executive pursuant to this
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Agreement, the Company shall pay Executive, and Executive agrees to accept, the
salary and other compensation and benefits described below in this Section 4.
(a) Salary. The Company shall pay Executive an annual base salary
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equal to Executive's base salary in effect as of December 1, 1998 ("Base
Salary"), payable at periodic intervals in accordance with the Company's
payroll practices for salaried employees.
(b) Health Care. During the Employment Period, Executive shall be
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eligible to participate in any health insurance programs and medical plans
available to officers or employees of the Company.
(c) Participation in Benefit and Equity Compensation Plans. During the
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Employment Period, Executive shall be eligible to receive all benefits,
including those under equity participation and bonus programs, to which key
employees are or become eligible under such plans or programs as may be
established by the Board.
(d) 401(k) Plan Benefits. In addition to the other benefits to which
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Executive shall be entitled to under this Agreement, Executive shall be
entitled to continue to participate in the Company's 401(k) Plan.
5. Vacation. During the Employment Period, Executive shall be entitled to
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vacation in accordance with the Company policy in effect for executive officers.
6. Indemnification. The Company shall maintain indemnification of Executive
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pursuant to the provisions of the Company's Articles of Incorporation and Bylaws
to the fullest extent of California law and all other applicable law, and shall
provide Executive with indemnification pursuant to the Company's standard
indemnification agreement and any director's and officer's liability insurance
policy maintained by the Company.
7. Acceleration and Vesting of Stock Options.
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(a) As of December 11, 1998, the status of Executive's outstanding
options (the "Options") to purchase shares of the Company's common stock (the
"Common Stock") and Executive's restricted stock purchases (the "Restricted
Shares") of Common Stock is as follows:
Shares Shares Vested Shares
Date of Subject to Exercise/Purchase as of Unvested
Grant/Issue Type Grant/Issue Price ($) 12/11/98 as of 12/11/98
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11/8/96 RS* 396,000 $0.375 231,000 165,000
1/22/97 RS* 84,000 $0.375 49,000 35,000
10/13/98 NQO** 150,000 $12.50 -- 150,000
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* RS=Restricted Stock
** NQO=Non-Qualified Stock Option
Pursuant to the terms of the stock purchase agreements evidencing the
480,000 Restricted Shares purchased by Executive pursuant to the 11/8/96 and
1/22/97 grants shown in the table above (the "Purchase Agreements"), an
aggregate of 200,000 of such Restricted Shares are subject to repurchase by the
Company as of December 11, 1998, at the purchase price paid per share, in the
event of Executive's cessation of services with the Company. The table above
illustrates the number of Restricted Shares in which Executive is vested as of
December 11, 1998. The portion of such Restricted Shares representing the 70,000
shares that would become vested prior to the Final Termination Date in the event
Executive continues to provide service to the Company during such period shall
continue to vest during the Employment Period, and the repurchase rights with
respect thereto shall terminate, in accordance with the applicable Purchase
Agreements, subject to the terms of this Agreement. With respect to the
remaining 130,000 Restricted Shares that would not otherwise become vested prior
to the Final Termination Date, notwithstanding the provisions of the applicable
Purchase Agreements covering such Restricted Shares, and in recognition of past
services provided by Executive to the Company, the vesting of all such 130,000
unvested Restricted Shares shall be accelerated so that all such Restricted
Shares are fully vested on and as of December 11, 1998 and shall not be subject
to repurchase by the Company under any circumstances thereafter, including but
not limited to any events of termination as addressed in Section 9 of this
Agreement. Executive shall own such shares free and clear of any repurchase or
other rights or restrictions on the part of the Company.
Pursuant to the terms of the existing stock option agreement evidencing the
Option to purchase 150,000 shares of Common Stock pursuant to the grant on
10/13/98 shown in the table above (the "Option"), the Option shall continue to
vest during the Employment Period and be subject to all the terms and conditions
of the Option, except as provided in this Agreement.
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8. Release and Waiver of All Claims.
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(a) Executive agrees that he fully and forever discharges, waives and
releases any and all claims and causes of action of any kind, known and unknown,
that he has or may have against the Company, 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,
status and responsibility as President and Chief Financial Officer of the
Company, and any and all acts or omissions occurring on or before December 11,
1998, 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, age discrimination under 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, and any other local, state and federal laws
and regulations relating to employment.
(b) Executive agrees that he fully and forever waives any and all
rights and benefits conferred upon him 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 [Executive]
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 [the Company].
Executive 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) The only exceptions to the releases and waivers of Sections 8(a)
and 8(b) above are the following:
(i) claims Executive may have for indemnification, defense,
advances or reimbursements under California Labor Code section 2802 or
other applicable law, under the Indemnification Agreement and under any
other pre-existing contractual indemnification agreement between Executive
and the Company, and under The Company's by-laws or articles of
incorporation;
(ii) claims Executive may have for unemployment insurance
benefits and for workers' compensation insurance benefits; and
(iii) claims under the stock option agreements and stock purchase
agreements described in Section 7 above.
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9. Benefits Payable Upon Disability or Death.
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(a) Disability Benefits. In the event of the Disability of Executive,
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the Company shall continue to pay Executive the Base Salary payable to Executive
in accordance with Section 4 hereof during the period of Executive's Disability
through the Final Termination Date, and, to the extent not vested as of the date
hereof as provided in Section 7 of this Agreement, all Restricted Shares and the
Option shall continue to vest according to the applicable vesting schedule as if
Executive were continuing as a full-time employee through the Final Termination
Date.
(b) Death Benefits. In the event of Executive's death during
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Executive's Disability or otherwise during the Employment Period, the Company
shall continue to pay Executive the Base Salary payable to Executive in
accordance with Section 4 hereof through the Final Termination Date, and, to the
extent not vested as of the date hereof as provided in Section 7 of this
Agreement, all Restricted Shares and the Option shall continue to vest according
to the applicable vesting schedule as if Executive were continuing as a full-
time employee through the Final Termination Date.
10. Severance Benefits.
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(a) Termination of Employment. In the event of the termination of
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Executive's employment, then Executive shall be entitled to receive severance
benefits as follows:
(i) Voluntary Resignation. If Executive's employment
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terminates by reason of Executive's voluntary resignation (and such
termination is not an Involuntary Termination or a termination for Cause),
then Executive shall not be entitled to receive severance or other benefits
except for those to which Executive may be entitled under this Agreement,
in particular, the Consulting Agreement described in Section 12, or any
separate agreement with the Company or as may then be established under the
Company's then existing severance and benefit plans and policies at the
time of such termination.
(ii) Involuntary Termination Other Than Termination For Cause.
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If Executive's employment is terminated as a result of an Involuntary
Termination other than a termination for Cause, then the following
severance benefits shall be paid or otherwise provided to Executive: (A)
the Company shall continue to pay to Executive the Base Salary payable to
Executive in accordance with Section 4 hereof through the Final Termination
Date; and (B) the Company shall pay the monthly continuation premiums for
medical coverage for Executive (and Executive's eligible dependents, if
any) pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA"), through the Final Termination Date.
(iii) Termination for Cause. If Executive's employment is
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terminated for Cause, then Executive shall not be entitled to receive any
severance payments or other severance benefits under this Section 10.
Executive's benefits will be continued under the Company's then
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existing benefit plans and policies in accordance with such plans and
policies in effect on the date of termination.
11. Confidential Information; Non-solicitation. Executive shall, at
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all times in the future, remain bound by the Genesys Telecommunications
Laboratories Confidential Information and Invention Assignment Agreement signed
by Executive, including the provisions regarding confidentiality and non-
solicitation of employees of the Company.
12. Consulting.
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In the event that Executive's employment is terminated (as a result of
Executive's voluntary resignation or otherwise) prior to the Final Termination
Date as contemplated by clause (ii) of Section 2 of this Agreement, then the
Company shall engage Executive as an Independent Consultant for the remaining
period through June 30, 1998 pursuant to the terms of the Independent Consulting
Agreement which is attached as Exhibit A hereto.
13. Services to Other Parties. Executive agrees that he will not
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provide services to another person or entity if such services will interfere
with Executive's ability to fulfill Executive's responsibilities to the Company
pursuant to this Agreement, or if such services are directly related to the
business in which the Company is now involved or becomes involved during the
Employment Period.
14. Successors. Any successor to the Company (whether direct or
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indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) or to all or substantially all of the Company's business and/or
assets shall assume the obligations under this Agreement and shall perform the
obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of Executive's rights hereunder
shall inure to the benefit of, and be enforceable by, Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
15. Notice. Notices and all other communications contemplated by this
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Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. Mailed notices to Executive shall be
addressed to Executive at the home address from which Executive most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notice shall
be directed to the attention of its Secretary.
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16. Miscellaneous Provisions.
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(a) Definition of Terms. The capitalized terms in this Agreement
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shall have the meanings set forth in this Agreement or in Appendix A hereto.
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(b) No Duty to Mitigate. Executive shall not be required to mitigate t
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he amount of any payment contemplated by this Agreement (whether by seeking new
employment or in any other manner), nor shall any such payment be reduced by
earnings that Executive may receive from any other source.
(c) Waiver. No provision of this Agreement shall be modified, waived
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or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by Executive and by an authorized officer or representative
of the Company (other than Executive). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or
of the same condition or provision of another time.
(d) Whole Agreement. No agreements, representations or understandings
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(whether oral or written and whether express or implied) which are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof.
(e) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California.
(f) Severability. If any term or provision of this Agreement or the
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application thereof to any circumstance shall, in any jurisdiction and to any
extent, be invalid or unenforceable, such term or provision shall be ineffective
as to such jurisdiction to the extent of such invalidity of unenforceability
without invalidating or rendering unenforceable the remaining terms and
provisions of this Agreement or the application of such terms and provisions to
circumstances other than those as to which it is held invalid or unenforceable,
and a suitable and equitable term or provision shall be substituted therefor to
carry out, insofar as may be valid and enforceable, the intent and purpose of
the invalid or unenforceable term or provision.
(g) Arbitration. Any dispute or controversy arising under or in
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connection with this Agreement may be settled by arbitration in the County of
San Francisco, California, in accordance with the rules of the American
Arbitration Association then in effect. Such arbitration proceedings shall be
nonbinding and any claim with respect to this Agreement, whether or not
previously the subject of an arbitration proceeding, may be brought in any court
of competent jurisdiction.
(h) Employment Taxes. All payments made pursuant to this Agreement
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will be subject to withholding of applicable income and employment taxes.
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(i) Assignment by Company. The Company may assign its rights
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under this Agreement to an affiliate, and an affiliate may assign its rights
under this Agreement to another affiliate of the Company; provided, however,
that if there is any such assignment, the Company will guarantee all payments
and the performance of all obligations under this Agreement. In the case of any
such assignment, the term "Company" when used in a section of this Agreement
shall mean the corporation or other entity that actually employs Executive.
(j) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
17. Prior Agreements. This Agreement replaces any other agreements
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between the Company and Executive.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement this day and
year first above written.
GENESYS TELECOMMUNICATIONS
LABORATORIES, INC.
By: /s/ Ori Sasson
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Ori Sasson
Chief Executive Officer
EXECUTIVE:
/s/ Michael J. McCloskey
____________________________________
Michael J. McCloskey
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APPENDIX A
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Definitions
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Cause. "Cause" shall mean (i) material and intentional breach of any
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material terms of this Agreement, (ii) conviction of a felony, (iii) repeated
unexplained or unjustified absence, (iv) willful breach of fiduciary duty under
this Agreement or (v) gross negligence or willful misconduct where such gross
negligence or willful misconduct has resulted or is likely to result in
substantial and material damage to the Company or its subsidiaries.
Disability. "Disability" shall mean the inability of Executive to
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perform all the material duties of Executive's position as determined by an
independent physician selected with the approval of the Company and Executive.
Involuntary Termination. "Involuntary Termination" shall mean
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termination by the Company of Executive's employment for any reason other than
for Cause, and shall include Executive's voluntary resignation following (i) the
material breach by the Company of one or more of its obligations under this
Agreement which are not otherwise corrected within ten (10) days following
Executive's written notice to the Company of such breach, or (ii) the occurrence
of any of the following events without Executive's express prior written
consent: (A) a change in Executive's position with the Company which materially
reduces Executive's level of responsibilities, (B) a reduction in Executive's
level of compensation, (C) a relocation of Executive's place of employment by
more than twenty (20) miles from Executive's current place of employment, (D)
the assignment of additional material job responsibilities or a reduction in job
responsibilities inconsistent with Executive's position with the Company and
Executive's prior responsibilities, or (E) in the event Executive is no longer
the Company's President reporting to the CEO.
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ANNEX A
INDEPENDENT CONSULTING AGREEMENT
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The following confirms the agreement ("Agreement") between Michael
McCloskey ("Consultant") and Genesys Telecommunications Laboratories, Inc. and
any successors thereto ("Genesys") with respect to the provision of consulting
services by Consultant to Genesys.
1. Term of Agreement. The Consulting Period shall commence on
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[insert appropriate date], 1999 ("Effective Date"). The term of this Agreement
shall be through June 30, 1999 ("Consulting Period"). This Agreement shall
terminate on June 30, 1999, or an earlier date pursuant to section 10 of this
Agreement ("Termination Date").
2. Independent Contractor Status. It is the express intention of the
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parties to this Agreement that the Consultant is an independent contractor, and
is not an employee, agent, joint venturer or partner of Genesys. Nothing in this
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
Services that Genesys reasonable requests of Consultant from time-to-time by and
through Genesys' Chief Executive Officer ("CEO"). Consultant shall be available
to perform such Services for up to an average of twenty (20) hours per week
during the Consulting Period. The Services to be provided by Consultant will
include:
i. Doing all things necessary and requested to effect a smooth
transition of all business related matters for which Consultant has been
responsible to the CEO, any CFO and any other proper officer of Genesys; and
ii. Providing advice and guidance with respect to operations,
sales, marketing and strategic matters as requested by the CEO, the Board or the
Chairman.
4. Compensation. For the duration of the consulting period,
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Consultant shall be paid cash compensation equal to Consultant's salary
compensation as such compensation was in effect on December 1, 1998 in
Consultant's position as President of Genesys, such compensation to be paid bi-
monthly in accordance with the Company's practice for employees, and Consultant
shall continue vesting in all stock options that were granted to, and in all
restricted shares that were purchased by, Consultant in connection with his
employment with Genesys. The foregoing is Consultant's sole compensation for
rendering Services to Genesys and for reserving Consultant's time to render
Services to Genesys. Genesys also agrees to reimburse Consultant for any costs
incurred in performing the Services.
5. Services to other Persons/Entities. The parties to this Agreement
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understand and agree that the Consultant may, and probably will, perform
consulting and employment (full-time or part-time) services for other persons or
entities during the Consulting Period. However, Consultant agrees that he will
not provide services to another person or entity if such services will interfere
with Consultant's ability to provide Services to Genesys pursuant to this
Agreement, or if such services are directly competitive with the business in
which Genesys is now involved.
6. Employment of Assistants. Should the Consultant, in his sole
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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, unless otherwise agreed or requested by Genesys. The parties further
agree that, unless otherwise agreed or requested by Genesys, 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
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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.
7. Obligations of the Consultant. Consultant will be responsible for
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any and all taxes due on all payments and benefits provided to him by Genesys
under this Agreement, including state, federal and local taxes and mandatory
contributions to government benefit programs.
8. Reporting to Genesys' Facilities. Consultant is not required to
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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 only as necessary to provide Services to Genesys.
9. Obligations re: Confidential Information, Inventions and Non-
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Solicitation.
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The Confidential Information and Inventions Assignment Agreement,
signed by Consultant in his capacity as a Genesys employee, is hereby renewed by
Consultant and shall have the same force and effect as if executed by Consultant
contemporaneous with execution of this Agreement; and for the purpose of this
Agreement, every reference to employment with Genesys made in the Confidential
Information and Inventions Assignment Agreement shall be interpreted and
construed to mean and refer to the consulting relationship between Executive and
Genesys established by this Agreement.
10. Earlier Termination of Agreement. This Agreement may be
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terminated by Genesys at any time prior to the Termination Date for the breach
by Consultant of any obligation of sections 5, 6, 7 or 9 of this Agreement.
11. Enforceability of Agreement. Consultant agrees that any dispute
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in the meaning, effect, or validity of this Agreement shall be resolved in
accordance with the laws of the State of California without regard to the
conflict of laws provisions thereof. Consultant further agrees that if one or
more provisions of this Agreement are held to be unenforceable under applicable
California law, such provision(s) shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
12. Assignment. This Agreement shall not be assignable by either the
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Consultant or Genesys without the express written consent of the other party.
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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 Agreement or any claim arising out of or relating to this 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 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 Agreement. This Agreement contains the entire
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understanding and agreement of the parties regarding its subject matters and can
only be modified by a subsequent written agreement executed by the Consultant
and Genesys.
15. Notices. All notices required or given pursuant to this 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 courier service:
a. To Genesys:
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Genesys Telecommunications Laboratories, Inc.
1155 Market Street, 11th Floor
San Francisco, CA 94103
Attn: Ori Sasson, Chief Executive Officer
b. To Consultant:
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Michael J. McCloskey
2999 Sorano Court
Pleasanton, CA 94566
IN WITNESS, the parties have executed this Independent Consulting
Agreement to be effective as of [insert appropriate date], 1999.
Dated: ______________, 1999 Consultant:
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Michael J. McCloskey
Dated: ______________, 1999 Genesys Telecommunications Laboratories, Inc.:
By:
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. Ori Sasson
Chief Executive Officer
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