|
Exhibit
10.2
4/9/08
CONFIDENTIAL SEPARATION
AGREEMENT AND GENERAL RELEASE
This CONFIDENTIAL
SEPARATION AGREEMENT and GENERAL RELEASE (hereinafter referred to
as the “Agreement”) is made and entered into by and
between Sharon A. O’Leary (“Executive”) and
Vonage Holdings Corp. (defined herein to include, its affiliates,
subsidiaries, predecessors and successors, and hereinafter referred
to as “Vonage” or “the Company”), effective
as of March 31, 2008 (the “Effective Date”).
Executive and Vonage are hereinafter each referred to as the
“Party” and, collectively, as the
“Parties.”
WHEREAS, Executive
has been employed by Vonage as Executive Vice President and Chief
Legal Officer;
WHEREAS, Executive
and Vonage entered into an Employment Agreement dated as of
August 8, 2005 (“Employment Agreement”) (attached
hereto as Exhibit A);
WHEREAS, the
Parties acknowledge that it is in their mutual and best interests
for Executive to separate from service as an officer and employee
of Vonage effective March 31, 2008 and to resign as a member
of all applicable boards of directors, boards of trustees, and
executive and/or management committees of Vonage of which she is a
member, also effective March 31, 2008 and such separation
shall be treated as a termination of employment pursuant to
Section 3(b) of the Employment Agreement;
WHEREAS, Vonage and
Executive have read this Agreement and have had the opportunity to
review it with their respective legal counsel; and
WHEREAS, Vonage and
Executive desire to resolve any and all issues and claims between
them relating to Executive’s employment and her separation
therefrom, including without limitation, any and all issues and
claims arising from or relating to the Employment Agreement, and to
reach an amicable accord and settlement concerning their future
relationship.
NOW, THEREFORE, in
consideration of the premises and mutual promises herein contained,
the undersigned Parties, intending to be legally bound, hereby
agree as follows:
1. Separation
. Executive will separate from service with Vonage on
March 31, 2008 (the “Separation Date”), and
Executive’s services on any and all boards of directors,
boards of trustees, and executive and/or management committees of
Vonage of which she was a member will end on such date pursuant to
Section 3(e) of the Employment Agreement. The terms of
Executive’s separation from Vonage are now being agreed to,
as described herein.
2. Salary
. Executive agrees that Vonage has no obligation to
make, and will not make, any additional salary payments to
Executive that have not already been paid, except for any and all
earned, accrued or owed amounts, but not yet paid, to which
Executive is entitled up to and including March 31, 2008,
including, but not limited to, earned and unpaid salary,
unused
- 1 -
accrued vacation and unreimbursed
reasonable business expenses (submitted in accordance with and
payable under the Company’s expense reimbursement policy).
Any further entitlement that Executive may have to compensation
will be governed by the terms of this Agreement.
3.
Equity Incentive Compensation .
(a) Stock Options
. The stock options granted to Executive on
August 1, 2005, March 15, 2006 and March 15, 2007
will continue to vest through the Separation Date at which time the
unvested options will be forfeited and the vested options will
remain exercisable for a period of one year in accordance with the
2001 Stock Incentive Plan. Stock options granted to Executive on
September 4, 2007 will be forfeited on the Separation
Date.
(b)
Restricted Stock Units
. Unvested Restricted Stock Units granted to Executive
on August 4, 2006 and August 4, 2007 will be forfeited on
the Separation Date.
4.
General Release by Executive .
(a) In exchange for the
consideration provided in this Agreement, and as a material
inducement for both Parties entering into this Agreement, Executive
for herself, her heirs, executors, administrators, trustees, legal
representatives, successors and assigns (hereinafter collectively
referred to for purposes of this Paragraph 4 as
“Executive”) hereby irrevocably and unconditionally
waives, releases, and forever discharges Vonage, and its past,
present and future affiliates and related entities, parent and
subsidiary corporations, divisions, shareholders, predecessors,
future officers, directors, trustees, fiduciaries, administrators,
executives, agents, representatives, successors and assigns
(hereinafter collectively referred to for purposes of this
Paragraph 4 as “Vonage”) from any and all waivable
claims, charges, demands, sums of money, actions, rights, promises,
agreements, causes of action, obligations and liabilities of any
kind or nature whatsoever, at law or in equity, whether known or
unknown, existing or contingent, suspected or unsuspected, apparent
or concealed, foreign or domestic (hereinafter collectively
referred to as “claims”) which she has now or in the
future may claim to have against Vonage based upon or arising out
of any facts, acts, conduct, omissions, transactions, occurrences,
contracts, claims, events, causes, matters or things of any
conceivable kind or character existing or occurring or claimed to
exist or to have occurred prior to the Separation Date in any way
whatsoever relating to or arising out of Executive’s
employment with or separation of employment from Vonage. Such
claims include, but are not limited to, claims arising under the
Age Discrimination in Employment Act, 29 U.S.C. § 621
et seq. ; Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. ; the
Americans with Disabilities Act, 29 U.S.C. § 12101
et seq. ; the Family and Medical Leave Act of 1993,
29 U.S.C. § 2601 et seq. ; the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001
et seq. ; any other federal, state or local statutory
laws including, but not limited to, the New Jersey Law Against
Discrimination, the Conscientious Employee Protection Act, the New
Jersey Wage Payment Law, the New Jersey Family Leave Act, the
common law of the State of New Jersey; any claim under any local
ordinance, including, but not limited to, any ordinance addressing
fair employment practices; any common law claims; and any and all
claims for counsel fees and costs.
(b) To the fullest extent
permitted by law, and subject to the provisions of Paragraphs 4(d)
and 4(e) below, Executive represents and affirms that she has not
filed, or caused to be filed
- 2 -
and shall not cause to be
filed on her behalf, any claim for relief against Vonage and, to
the best of her knowledge and belief, no outstanding claims for
relief have been filed or asserted against Vonage or any releasee
on her behalf.
(c) In waiving and releasing
any and all waivable claims whether or not now known, Executive
understands that this means that, if she later discovers facts
different from or in addition to those facts currently known by
her, or believed by her to be true, the waivers and releases of
this Agreement will remain effective in all respects -- despite
such different or additional facts and her later discovery of such
facts, even if she would not have agreed to this Agreement if she
had prior knowledge of such facts.
(d) Nothing in this
Paragraph, or elsewhere in this Agreement, prevents or prohibits
Executive from filing a claim with a government agency, such as the
U.S. Equal Employment Opportunity Commission, that is responsible
for enforcing a law on behalf of the government. However, Executive
understands that, because Executive is waiving and releasing, among
other things, any and all claims for monetary damages and any other
form of personal relief (per Paragraph 4(a) above), Executive may
only seek and receive non-monetary forms of relief through any such
claim.
(e) Nothing in this
Paragraph, or elsewhere in this Agreement, is intended as, or will
be deemed or operate as, a release by Executive of her rights to
indemnification relating to her performance of services as an
employee, officer and/or board member of Vonage, including, but not
limited to, those rights to indemnification as are set forth in the
Indemnification Agreement entered into by Executive and Vonage
dated as of May 19, 2006 (attached hereto and incorporated
herein as Exhibit B) and in Article EIGHTH of the Restated
Certificate of Incorporation of Vonage Holdings Corp. dated as of
May 30, 2006 (attached hereto and incorporated herein as
Exhibit C). Accordingly, nothing in this Paragraph, or
elsewhere in this Agreement, prevents or prohibits Executive from
filing a future claim for indemnification or under any applicable
insurance policy. In addition, Executive is not releasing any right
she may have to obtain contribution as permitted by law as a result
of any act or failure to act for which she and any released person
are jointly liable.
5. Release by Vonage
. In exchange for the consideration provided in this
Agreement, and as a material inducement for both Parties entering
into this Agreement, Vonage hereby irrevocably and unconditionally
waives, releases and forever discharges Executive, her heirs,
executors, administrators, trustees, legal representatives,
successors and assigns from any and all waivable claims, charges,
demands, sums of money, actions, rights, promises, agreements,
causes of action, obligations and liabilities of any kind or nature
whatsoever, at law or in equity, whether known or unknown, existing
or contingent, suspected or unsuspected, apparent or concealed,
foreign or domestic (hereinafter collectively referred to as
“claims”), other than claims arising out of
an
|
