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Exhibit
10.01
EXECUTION COPY
CONFIDENTIAL SEPARATION
AGREEMENT AND GENERAL RELEASE
This CONFIDENTIAL SEPARATION
AGREEMENT AND GENERAL RELEASE (“Agreement”), dated as
of April 10, 2008 is hereby made between ELYAHU TENDLER
(“Employee”) and IDT CORPORATION and its divisions,
affiliates, subsidiaries (including but not limited to, IDT
Telecom, IDT Capital, Inc., Net2Phone, Inc., and Union Telecard
Alliance, LLC and their respective divisions, affiliates and
subsidiaries), predecessors, successors and assigns (collectively
“IDT”). Employee and IDT are hereinafter referred to
individually as a “Party” and collectively as the
“Parties”. This Agreement will become effective on the
Effective Date (as hereafter defined).
WHEREAS, EMPLOYEE’s
employment with IDT will be involuntarily terminated by IDT
effective as of the close of business on June 30, 2008 (the
“Termination Date”); and
WHEREAS, EMPLOYEE and IDT
have agreed to settle fully and finally any and all matters and/or
controversies between them under the terms and conditions set forth
in this Agreement.
NOW THEREFORE, with the
intent to be legally bound hereby, and in consideration of the
mutual promises and covenants contained herein and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, IDT and EMPLOYEE agree to the terms and
conditions set forth below.
1. Payment
.
1.1. EMPLOYEE shall be
entitled to the following payments from IDT, all of which shall be
wired to EMPLOYEE’S bank account, the details of which are on
file with IDT’s employee direct deposit program:
(a) EMPLOYEE shall receive
compensation based on an annual salary of Six Hundred Thousand
Dollars ($600,000) (the “ Base Salary ”) from
and after April 1, 2008 through the Termination Date (the
“Transition Period”). Such Base Salary shall be paid
less applicable taxes and customary withholding, such salary to be
paid in conformity with the Company’s payroll policies
relating to its employees. Any base salary earned through the
Termination Date but unpaid at such time shall be paid at such time
as other IDT employees are paid for such period. Employee shall
continue to be eligible to participate in the Company’s
medical, dental, life and disability programs (the “
Programs ”) subject to the terms and conditions of the
Programs, and you will be eligible to participate in the
Company’s 401(K) plan (the “ 401(K) Plan
”) subject to the terms and conditions of that
Plan.
(b) IDT agrees to pay
EMPLOYEE contemporaneously with, and in addition to, the first
payment made pursuant to Section 1(c) immediately below, the
sum of Eighty Seven Thousand Five Hundred Dollars $87,500 (less
applicable taxes and customary withholding), such amount
representing all wages, salaries and bonuses due to EMPLOYEE for
services provided prior to the Transition Period.
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(c) IDT agrees to pay
EMPLOYEE One Million Nine Hundred Ninety Nine Thousand Seven
Hundred Six Dollars and One Cent ($1,999,706.01) (the “
Severance Pay ”), to be paid in accordance with
the payment schedule outlined in Exhibit A (the “
Severance Pay Period ”), the completion of such
schedule subject to IDT’s receipt from EMPLOYEE of an
affirmation of the general release contained in
Section 9 in the form of Exhibit B hereto, as
indicated on Exhibit A. The first payment will be paid immediately
upon the expiration of the Revocation Period (as hereafter
defined).
1.2. EMPLOYEE shall receive
reimbursement by IDT for all reasonable and approved business
expenses incurred prior to the Termination Date in accordance with
IDT’s policies.
1.3. All payments hereunder
shall be less required withholdings for taxes and benefit plan
contributions (if any).
2. Benefits
.
2.1. As of the Termination
Date, EMPLOYEE shall be eligible to elect the continuance of group
health and dental insurance (if EMPLOYEE is currently enrolled in
the IDT sponsored plan), in accordance with federal COBRA
law.
2.2. If EMPLOYEE so elects,
and so long as EMPLOYEE is entitled to COBRA coverage, during the
Severance Pay Period, EMPLOYEE’s premiums for group health
and dental insurance under COBRA shall be the same amount that an
active employee contributes for such benefit coverage. If EMPLOYEE
wishes to elect COBRA (continue coverage in the then current group
medical and/or dental plan after June 30, 2008), EMPLOYEE
must complete and sign the COBRA Election Form and return it to
Human Resources in accordance with COBRA. After the Severance
Pay Period, EMPLOYEE’s premiums for COBRA coverage will be
the published rate of group health insurance under
COBRA.
2.3. After the Termination
Date, EMPLOYEE will not continue to accrue vacation benefits or
commissions, or otherwise be eligible for Life or Disability
benefits, or continue to contribute to the IDT Savings Plan or
401(k) Plan, or participate in the Employee Stock Purchase Plan,
and will not receive any other benefits from IDT, other than those
specified in this Agreement. EMPLOYEE’s rights with respect
to any options to purchase IDT stock or IDT stock he may have
received from IDT are governed by the applicable award agreements
and plan documents.
3. Payment of all
Outstanding Compensation . Except for those obligations
specifically set forth in this Agreement, as of the Termination
Date, any and all agreements or arrangements, either oral or
written, between the Parties related to commissions, bonuses,
ownership or other interests in any entities or assets,
payments
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and/or compensation of any kind,
including but not limited to any documents, correspondence, oral
promises and any other arrangements related to the proposal known
as the Jonah Value Creation Project, (“
Compensation ”) are deemed null and void
without any continuing obligation or liability of any party
thereunder; it being understood that, among other things, from and
after the Termination Date, except as expressly provided hereunder,
IDT will have no obligation to pay EMPLOYEE any Compensation or
have any duties, responsibilities or other obligations to EMPLOYEE
with respect to any agreement or arrangement and EMPLOYEE will have
no rights thereunder. EMPLOYEE acknowledges and agrees that he is
due no other compensation, commission payments, benefits or other
consideration of any kind other than as specifically identified in
this Agreement.
4. Equipment . Unless
otherwise expressly provided in Exhibit C, EMPLOYEE will return any
and all IDT property and equipment in his possession, including,
but not limited to, any and all IDT identification cards, card key
passes, keys, pagers, computers (office desktop), cellular
telephones or similar personal digital assistant devices, corporate
credit cards, corporate calling cards, and any other property or
equipment in his possession that IDT may not know of, on or before
the Termination Date.
5. Termination of
Employment; Resignation . EMPLOYEE acknowledges and agrees that
his employment by IDT will terminate on the Termination Date, and
that he will be deemed to have resigned from all officer positions
and directorships that he may hold with IDT (or otherwise at the
request of IDT) upon execution of this Agreement, other than his
position as General Counsel of IDT Telecom from which he shall
resign at the end of the Transition Period (or upon the earlier
request of the CEO of IDT Telecom). Contemporaneously herewith,
EMPLOYEE shall execute and deliver a resignation letter from such
officer positions and directorships in the form attached hereto as
Exhibit D. EMPLOYEE acknowledges and agrees that he is due no other
compensation, commission payments, benefits or other compensation
of any kind other than as specifically identified in this
Agreement.
6. Re-employment or
Reinstatement . EMPLOYEE recognizes and acknowledges that IDT
has no obligation to recall, rehire, or re-employ EMPLOYEE in the
future.
7. Cooperation
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7.1. EMPLOYEE agrees to
reasonably cooperate with reasonable requests for advice,
cooperation and/or assistance made by IDT, at no charge other than
as set forth in Section 1.1(a) with respect to the Transition
Period, in connection with matters he worked on while employed by
IDT, including, without limitation, to assist in the orderly
transition of his duties and responsibilities and any outstanding
projects to the individual (or individuals) designated by IDT.
Failure by EMPLOYEE to provide reasonable cooperation will
constitute a material breach of this Agreement.
7.2. In furtherance of the
foregoing, EMPLOYEE agrees to reasonably cooperate with all
reasonable requests which IDT may make, including but not limited
to, requests for information, interviews, depositions (to be
conducted at a
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mutually convenient and
reasonable time) and/or at trial related to any legal action
arising from events which occurred during EMPLOYEE’s
employment. IDT shall attempt, in good faith and when possible, to
issue the above referenced requests so as not to prevent
EMPLOYEE’s efficient disposition of same, and EMPLOYEE agrees
to comply in good faith with IDT’s requests.
8. No Other
Inducements . EMPLOYEE acknowledges that the payments described
in Section 1.1(c) are made solely in consideration of
and in exchange for his execution of this Agreement and the general
release. EMPLOYEE acknowledges that he is not otherwise entitled to
receive such payments, absent his execution of this Agreement, and
that no other promise or agreements of any kind have been made to
him or with him by any person or entity whatsoever to cause him to
sign this Agreement.
9. Release
.
9.1. For good and valuable
consideration (the receipt and sufficiency of which hereby are
acknowledged) and as a material inducement to IDT to enter into
this Agreement, EMPLOYEE, for himself and his heirs, executors,
administrators, personal representatives and members of his
immediate family, hereby voluntarily, irrevocably and
unconditionally releases, acquits and forever discharges IDT and
its present and former officers, directors, employees,
shareholders, consultants, attorneys, advisors, insurers, agents
and representatives, and all persons acting by, through, under or
in concert with any of them (whether any of the aforementioned
individuals were acting as agents for IDT or in their individual
capacities) (collectively, the “ Released
Parties ”) from any and all claims and causes of
action (except those necessary to enforce his rights under this
Agreement) including, but not limited to, claims related to
EMPLOYEE’s employment, or separation from employment; any
claims for salary, bonuses, commissions, payments related to
severance pay, vacation pay or any benefits under the Employee
Retirement Income Security Act (except for vested ERISA benefits
which are not affected by this Agreement); any claims for option,
stock or other incentive awards; any claim under New Jersey’s
Wage and Hour Laws, or other state wage and hour laws; any claim
under the Worker Adjustment and Retraining and Notification Act;
any claim alleging sexual or other harassment, or discrimination
based on race, color, national origin, ancestry, religion, marital
status, sex, sexual orientation, citizenship status, pregnancy,
medical condition, handicap or disability (as defined by the
Americans with Disabilities Act or any foreign, federal, state or
local law), age, or any other unlawful discrimination (under the
Age Discrimination in Employment Act, as amended by the Older
Workers Benefit Protection Act of 1990, Title VII of the Civil
Rights Act of 1964, as amended, the Americans with Disabilities
Act, the Equal Pay Act, the Violence Against Women Act, the New
Jersey Law Against Discrimination, or any other foreign, federal,
state or local laws); discharge in violation of New Jersey’s
Conscientious Employee Protection Act or other foreign, state or
federal “whistle blower” laws; discharge in violation
of the federal Family and Medical Leave Act, the New Jersey Family
Leave Act or other foreign, state or federal family leave laws; the
New Jersey Temporary Disability Benefits Law, breach of implied or
express contract, breach of promises, misrepresentation,
negligence, fraud,
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estoppel, defamation,
infliction of emotional distress, violation of public policy,
retaliatory discharge, wrongful or constructive discharge,
retaliation, intentional tort or for attorneys’ fees, in each
such case, related to or arising from Employee’s employment
by, or provision of services to, IDT, which EMPLOYEE or his heirs,
executors, administrators, personal representatives or members of
his immediate family now have, ever had or may hereafter have,
whether known or unknown, suspected or unsuspected, up to and
including the date both Parties have executed this
Agreement.
9.2. EMPLOYEE, for himself
and his heirs, executors, administrators, personal representatives
and members of his immediate family, also hereby waives all rights
to file any charge or complaint against IDT arising out of
EMPLOYEE’s employment by or termination thereof from IDT
before any federal, state or local administrative agency, except
where any law prohibits such waivers. EMPLOYEE, for himself and his
heirs, executors, administrators, personal representatives and
members of his immediate family, further waives all rights to
recover any damages or equitable or other relief in any claim or
suit brought by or through the Equal Employment Opportunity
Commission, or any other federal, state or local agency under the
Age Discrimination in Employment Act, as amended by the Older
Workers Benefit Protection Act of 1990, Title VII of the Civil
Rights Act of 1964, as amended, the Americans with Disabilities
Act, the Equal Pay Act, the New Jersey Law Against Discrimination
or any other foreign, federal, state, or local discrimination law,
except where such waiver is prohibited by law.
9.3. EMPLOYEE further agrees,
promises and covenants that neither he nor his heirs, executors,
administrators, personal representatives, members of his immediate
family or any person, organization, or other entity acting on his
behalf has filed, charged or claimed, or will file, charge or
claim, or will cause or permit to be filed, charged or claimed, any
action for damages or other relief (including injunctive,
declaratory, monetary relief or other) against the Released Parties
involving any matter occurring in the past up to the Effective Date
(as hereafter defined), or involving or based upon any claims,
demands, causes of action, obligations, damages or liabilities
which are later discovered.
9.4. EMPLOYEE further agrees
that the releases contained in Sections 9.1 through
9.3 above shall survive in the event of a breach by EMPLOYEE
(or any person, organization or entity acting on his behalf) of
this Agreement, or any representation, warranty, promise, covenant
or other obligation contained herein or therein.
9.5. EMPLOYEE agrees to
affirm the releases contained in Sections 9.1 through
9.3 above as of the Termination Date in the form of
Exhibit B . Failure to provide such affirmation upon request
of IDT will constitute a material breach of the
Agreement.
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9.6. IDT represents and
warrants to EMPLOYEE that, as of the date hereof, it knows of no
claim against EMPLOYEE related to or arising from EMPLOYEE’s
employment by, or provision of services to, IDT.
10. No Admission of
Liability . The making of this Agreement and anything contained
herein is not intended, and shall not be construed, as an admission
that IDT has violated any foreign, f
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