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EXHIBIT
10.1
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
Michael Snyder (“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
April 12, 2007 (the “Effective Date”). Executive
and Vonage are hereafter referred to as the
“Parties.”
WHEREAS, Executive was
employed by Vonage as its Chief Executive Officer;
WHEREAS, Executive and Vonage
entered into an Employment Agreement dated February 7, 2006
(“Employment Agreement”);
WHEREAS, Executive has
resigned from his position as Chief Executive Officer effective
April 11, 2007, which resignation, pursuant to
Section 4(e) of the Employment Agreement, constituted
Executive’s resignation as a member of all applicable boards
of directors, boards of trustees, and executive and/or management
committees of Vonage of which he was a member, also effective
April 11, 2007;
WHEREAS, for the purposes of
this Agreement, and assuming that it is executed by Executive and
is not rescinded by Executive or otherwise caused by Executive to
be held invalid for any reason, the Executive’s resignation,
under the circumstances of his separation, will be treated in the
same manner as a resignation for “Good Reason” within
the meaning 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
including without limitation Executive’s employment and his
separation therefrom, as well as 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,
it is agreed as follows:
1. Separation. Executive ceased
performing duties for, and resigned from, Vonage on April 11,
2007 and Executive’s services on any and all boards of
directors, boards of trustees, and executive and/or management
committees of Vonage of which he was a member ended on such date.
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
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including April 11, 2007,
including, but not limited to, earned and unpaid salary, unused
accrued vacation and unreimbursed reasonable expenses (submitted in
accordance with and payable under the Company’s expense
reimbursement policy), payable in a lump sum within five
(5) days after the revocation period described in
Section 19(d) below. Any further entitlement that Executive
may have to compensation shall be governed by the terms of this
Agreement.
3. Non-Admission. It is
specifically understood and agreed that this Agreement does not
constitute and is not to be construed as an admission or evidence
of (i) any violation by Vonage or Executive, of any federal,
state, or municipal law, statute, or regulation, or principle of
common law or equity, (ii) the commission by Executive or
Vonage of any other actionable wrong, or (iii) any wrongdoing
of any kind whatsoever on the part of Executive or Vonage, and
shall not be offered, argued, or used for that purpose.
4. General Release.
(a) In exchange for the
consideration provided in this Agreement, and as a material
inducement for both Parties entering into this Agreement, Executive
for himself, his 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”) for 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 he 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 Effective Date in any way
whatsoever relating to or arising out of Executive’s
employment with Vonage. Such claims include, but are not limited
to, claims arising under including any claims 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 he has not
filed or caused to be filed on his behalf any claim for relief
against Vonage or any releasee and, to the best of his knowledge
and belief, no outstanding claims for relief have been filed or
asserted against Vonage or any releasee on his behalf.
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(c) In waiving and releasing
any and all waivable claims whether or not now known, Executive
understands that this means that, if he later discovers facts
different from or in addition to those facts currently known by
him, or believed by him to be true, the waivers and releases of
this Agreement will remain effective in all respects —
despite such different or additional facts and his later discovery
of such facts, even if he would not have agreed to this Agreement
if he 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 shall
be deemed or operate as, a release by Executive of his rights to
indemnification relating to his 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
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 A). Accordingly, nothing
in this Paragraph, or elsewhere in this Agreement, prevents or
prohibits Executive from filing a future claim for indemnification.
Notwithstanding the foregoing, the representations contained in
this Paragraph 4(e) are intended as recitals only and are not
intended to provide Executive any additional contractual rights
beyond those contained in said Article EIGHTH.
5. Consideration and Post-Employment
Benefits. Vonage, for and in consideration of the undertakings
of Executive set forth herein and pursuant to Section 4(b)(i)
of the Employment Agreement, and intending to be legally bound, and
provided that Executive does not revoke this Agreement pursuant to
Paragraph 19(d) below, agrees that Vonage will pay the following to
Executive: (1) One Hundred Fifty Thousand Six Hundred
Eighty-Four and 93/100 Dollars ($150,684.93) which constitutes the
Executive’s pro-rata annual bonus for 2007 and which will be
paid in a lump sum payment on the date such bonus would have been
payable to Executive had he remained employed by the Company but,
in no event, later than March 15, 2008, (2) One Million
One Hundred Thousand and 00/100 Dollars ($1,100,000.00) which
is
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