EXHIBIT 10.1
FIRST AMENDMENT TO SEPARATION AND RELEASE AGREEMENT
This First Amendment to Separation
and Release Agreement (this “ First Amendment ”)
is entered into as of February 9, 2007 (the “ Amendment
Effective Date ”), by and between Witness Systems, Inc.,
a Delaware corporation (the “ Company ”), and
David Gould, an individual (“ Executive ”), with
reference to the following facts:
A. The Company and
Executive (collectively, the “ Parties” ) are
parties to a Separation and Release Agreement, dated January 3,
2007 (the “ Original Separation Agreement ”),
pursuant to which, among other things, Executive has executed and
delivered to the Company a resignation letter by which he has
resigned his employment with the Company (and all other officer or
director positions he held with any of the Company’s
subsidiaries or affiliates as of January 3, 2007 (the “
Other Positions ”)), which resignation (the “
Resignation ”), by the terms of the Separation
Agreement, becomes effective upon acceptance by the Company’s
Board of Directors (the “ Board ”). (For
purposes of this First Amendment, the Original Separation
Agreement, as amended by this First Amendment, is referred to as
the “ Amended Separation Agreement
.”)
B. The Parties are
parties to a Change of Control Agreement, dated November 3, 2004,
as amended by a First Amendment to Change of Control Agreement,
dated February 16, 2006 (collectively, the “ CIC
Agreement ”), pursuant to which Executive is entitled to
certain benefits upon a “Change of Control” of the
Company as that term is defined in Section 1.3 of the CIC
Agreement.
C. The Parties
desire to terminate, amend and confirm various rights and
obligations among them by entering into this First
Amendment.
NOW, THEREFORE, the Parties agree as
follows:
1.
Meaning of Terms . Except as provided otherwise or as
defined in this First Amendment, all capitalized terms used in this
First Amendment will have the same meaning as under the Original
Separation Agreement.
2.
Employment of Executive . By this First Amendment, the
Board accepts (and Executive concurs with th
